The document discusses the importance of maintaining proper documentation in an employee's file for potential future litigation. It recommends including the offer letter, performance reviews, discipline records, accommodation documentation, and other relevant documents. Having a complete employee file can help employers meet production obligations, prove their case with contemporaneous evidence less subject to fading memory or bias, and avoid appearing disorganized if litigation occurs.

1. Love your Lawyer, Kill a Tree – The
Importance of Documentation in an
Employment Relationship
Presented by: Alexandra C. Bochinski

2. Contents of an Employment File and Why They
Matter in Litigation

3. A number of items should always be included in an
employment file:

4. 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?

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. • The items listed above should not be considered an
exhaustive list, but should definitely be included in every
employee file.

12. Why Do They Matter in Litigation?

13. 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.

14. “Relevant and material documents” includes electronic
records 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.

15. 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.

16. 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.

17. Proving your case
• Memory fades
• Litigants who are former employees are often most
affected by events and more likely to remember details.

18. 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.

19. 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.

20. Proving your case
• Perception matters
• Improper or incomplete record-keeping may create a
perception the employer runs a sloppy operation in
general.