The Importance of Documentation in an Employment Relationship
Love your Lawyer, Kill a Tree – TheImportance of Documentation in an Employment Relationship Presented by: Alexandra C. Bochinski
Contents of an Employment File and Why They Matter in Litigation
A number of items should always be included in an employment file:
The offer letter and/or employment contract• These items govern the entire employment relationship: • What role is the employee being hired to perform? • What are the job duties? • What is the remuneration? • What are the employer’s expectations of the employee?
The offer letter and/or employment contract• Any changes to the terms of the relationship need to be documented. Without proof of the terms of the employment relationship it becomes a “he said-she said” situation, and judges, arbitrators, and other decision-makers often sympathize with the employee.
The offer letter and/or employment contract• A proper employment contract or offer letter can save headaches down the road. Eg. it will be extremely difficult for an employee to claim they were wrongfully dismissed for breaching the company internet usage policy if the employment contract explicitly states that violation of the policy is grounds for dismissal.
Performance appraisals• An honest assessment of the employee’s performance creates a contemporaneous, permanent record of the employee’s strengths, weaknesses, productivity, and improvement (or lack thereof), all of which can be relied upon by the employer later to justify management decisions in relation to that employee.
Discipline records• Decision makers tend to sympathize with the employee and believe in second chances. An employer’s decision to discipline an employee is always easier to justify if the employer can demonstrate the employee committed misconduct in the past. Having grounds to discipline an employee but being unable to prove it is (from a practical perspective) as problematic as having no grounds at all.
Evidence of accommodation• Under human rights legislation an employer is prohibited from discriminating in employment practices (including the decision to continue to employ someone) on the basis of a number of prohibited grounds, unless the employer can show that it would not be possible to accommodate the employee without causing undue hardship. A common situation where this issue will arise is where an employee cannot perform their job duties because of a medical condition, which is considered a “physical disability” under the Alberta Human Rights Act.
Evidence of accommodation• Employers need to carefully document what efforts have been made to accommodate the employee (eg. time off of work to seek treatment, modified job duties that are within the employee’s physical abilities), and when those efforts were made. This lets an employer show they took their obligations seriously and will reduce the risk of a decision maker finding the employer failed to accommodate the employee.
• The items listed above should not be considered an exhaustive list, but should definitely be included in every employee file.
Production obligations• Parties to litigation are required to preserve and produce all “relevant and material documents”.• Saves time and expense gathering those documents if they are already stored in a single location.• Reduces the likelihood that anything relevant will be overlooked, missed, or destroyed by mistake.• Failing to produce documents that an employer would be expected to have on hand may create an appearance of trying to hide something or of having sloppy record keeping. The last thing you want is a decision-maker wondering what else may be missing.
“Relevant and material documents” includes electronicrecords such as emails• Unrealistic to have every email an employee was copied on saved into their employment file, but want to ensure these items are preserved in the event they are needed later.
Proving your case• The employee file is contemporaneous and neutral• Employment relationships that end in litigation will often be highly charged. This will affect perceptions and recollections after the fact. A contemporaneous, unchanging record will carry weight with a decision- maker.
Proving your case• The employee file is accepted• Parties will recall and describe things differently. Written records of events (such as disciplinary actions) that are not protested at the time they are created are difficult to challenge later.
Proving your case• Memory fades• Litigants who are former employees are often most affected by events and more likely to remember details.
Proving your case• The employee file is permanent• Even if the employer’s witnesses have total recall of events, there is no guarantee they will be available years down the road (or that relationships won’t change so they become hostile to the employer). Records prepared by that employee will remain accessible forever.
Proving your case• The employee file is centralized• Having all of an employee’s relevant employment information in one place means that it is less likely anything will be overlooked or inadvertently destroyed.
Proving your case• Perception matters• Improper or incomplete record-keeping may create a perception the employer runs a sloppy operation in general.