June 19th, 2018
Next to a profit or loss statement, the most important document an employer keeps on file may be an up-to-date and complete personnel file for each employee. Often the employer is faced with an issue where the complete personnel file will be crucial.
In addition to the start date and the other necessary personal information of each employee, a personnel file should include a record of any warnings given and discipline imposed. In defending a decision to terminate, the employer will likely have to demonstrate a history of progressive discipline as termination ought to be the last resort – the final step after all other efforts to rehabilitate the employee have failed. Those steps usually begin with a verbal warning(s), written warning(s), and suspension with or without pay. A record of each occurrence should be detailed setting out the date and nature of the incident, where it occurred, the name of anyone else involved and the disposition. It would be preferable to have any discipline record acknowledged in writing by the employee, but if that is not possible, then the employer can have someone present who can confirm in writing that the request that the notice be signed by the employee was made and refused by the employee.
The file should also include other relevant documents including the attendance record, any doctor’s note(s) advising of an illness that resulted in an extended absence and any accommodation made by the employer to meet the disability or restrictions medically imposed. Often after an employee has been terminated for cause or conduct, the employee will allege a medical problem that affected the ability of the employee to perform his duties. In some cases, the first time that an employer learns of a medical problem is after termination in the course of a human rights complaint based on disability or an application for long-term disability. The employee may well raise the issue of an alleged disability in a human rights application to explain away any allegations of poor performance. The ability to refer to any medical notes and the action(s) taken by the employer to accommodate from the personnel file can be conclusive.
When asked by an employer about the nature and extent of any personnel record, I have always maintained that there is never too much, but too little can compromise the employer’s position.
The practice of compiling a comprehensive employment or personnel file for each employee may take some effort, but will pay dividends when such a file can be used to justify and defend the action taken by the employer.