On October 27th, Arbitrator Dorsey held that a surreptitious audio recording should be entered into evidence because its probative value outweighed the potential prejudice to harmonious workplace relations. He was impressed that the recording was made spontaneously at a work team dinner (rather than during work proper) and that “tone” of the communications recorded would be relevant.
Arbitrator Dorsey commented:
I find the balance between real or potential prejudicial effect of an unplanned recording in the not staged, relaxed situation away from the stress of being on the fire line is outweighed by the probative value of having an accurate record of apparently unprovoked words and tone that became the subject of a complaint and the employer’s disciplinary decision.
The effect the recording might have on either the presentation of the union or employer’s case is secondary to the prejudicial effect exclusion of the recording will have on the credibility and acceptability of the outcome of this arbitration process.
It will be inexplicable to the employee witnesses at the dinner table why their recollection of the words and tone over 15 months ago, which will be subject to time consuming dissection to expose differences in recollection, is the approach preferred to determining what was said in what tone over listening to a recording of what was said with whatever limitations and frailties it might have. They would be justified in regarding such a fact-finding process as an anachronism lacking common sense; operating in a world in which they do not live; and should be treated with a corresponding lack of respect.