Employment litigation is highly contentious and issues are often determined on the basis of credibility: in a “he-said-she-said” situation, the more believable party will succeed. Employers can avoid such a situation by retaining and maintaining the integrity of their employee records.
In the litigation context, employers often bear the onus of justifying certain employment decisions: for example, terminating an employee for just cause, or accommodating an employee under the Human Rights Code. In addition, an employer who loses or destroys material evidence may have a presumption made against them that the evidence in question would not have been in their favour. For these reasons, upon taking a disciplinary action or terminating an employee, employers should act quickly to preserve any records that may be relevant as such records may be used as evidence to justify the action taken should litigation arise.
Employers should preserve the following types of evidence of employee misconduct in the event of a termination or disciplinary process.
Video surveillance records can be a very persuasive form of evidence. Video records act like eyewitness evidence, but they have perfect recall and no bias. If the video records are destroyed, the responsibility falls on the person who viewed the surveillance to discuss its contents during testimony. To avoid this from happening, employers should be sure to save the video evidence.
Immediately following a termination, employers should check the employee’s work email to ensure that any potential evidence is saved and maintained. Like video surveillance, email can serve as evidence of employee misconduct. If an employer has any reason to believe that an employee’s email account may have evidence of misconduct, they should undertake a full review of the email account and make copies of any relevant items. Employers may also consider restricting the employee’s access to the account to avoid the risk of the employee tampering with the content in the emails.
Laptop or Computer Hard Drive
Information found on a computer hard drive, including files, software, or internet history may also contain relevant evidence. If an employee was required to use a work computer, it is important to search through its contents before recommissioning the machine to another employee.
Company Phone Records
Company phone records may also provide useful evidence for employers. If the employer provides work phones to its employees, they should maintain access to any work-related information and have methods of preventing the loss of this information in the event of a termination for cause. Like emails, employers should have a method of storing this information that ensures it is not manipulated or deleted.
Evidence relevant to employment litigation can come from a variety of sources, and employers should use their knowledge and judgment to determine what the most likely sources may be in their own workplace. Employers should have a policy of retaining relevant records for a period of at least two years, as this is the period that employees generally have to make a claim under the Limitations Act, 2002. Failing to retain these documents may leave an employer ill-prepared to defend an employment decision.