It is one thing to do the right thing, but quite another to prove it.
That’s an issue employers often run into when it comes to a lack of documentation — whether relating to issues such as performance management, policies, misconduct and discipline, employee complaints — including allegations of workplace harassment or violence — and employee requests for accommodation.
In the employment law world, it is not unusual for an employer to exclaim it “has had it” with an employee who “has been a disaster since day one,” only to find out the employee file contains average performance reviews and no indication of any concerns. Without this evidence, it will be virtually impossible for the employer to satisfy a court it had just cause for dismissal.
Providing negative feedback or a documented response to a concern or complaint can be uncomfortable or might seem excessive in situations where the issue being dealt with is relatively minor. Managers and HR personnel will frequently have other demands on their time and may want to avoid “creating an issue” out of a situation that has not yet developed into a serious problem.
However, failing to thoroughly and completely document issues relating to an employee can be extremely prejudicial to an employer, exposing it to the risk of damages and increased legal costs down the road.
The documentation contained in an employee’s personnel file will typically form the primary evidentiary basis to support an employer’s decision to discipline or dismiss an employee for performance or behavioural issues, to demonstrate it has responded properly to requests for accommodation and to prove that allegations of harassment were investigated and dealt with appropriately.
Performance concerns, behavioural issues
Often, an employer that does not raise issues with an employee — or limits intervention to informal verbal discussions that remain undocumented — is simply trying to preserve peace in the workplace. The individual manager or HR professional may be concerned about upsetting the employee and may not have been trained in the art of management.
If an employer has consistently documented issues and concerns with the employee — including written records of verbal warnings and meetings with the employee, copies of written warnings, records of suspensions imposed or training provided to the employee, copies of performance improvement plans implemented with the employee, and final warnings — there will be a stronger basis for the decision to terminate with cause.
Most employees want to perform in accordance with their employer’s expectations. If an employer never raises issues with respect to performance or behaviour in the workplace with the employee, the employee may not understand clearly what those expectations are.
As a result, the issues may simply continue, resulting in the inefficient operation of the workplace, potential conflicts between employees or with customers, and rising unhappiness with the employee on the part of the employer.
An employer should also ensure an employee’s job description is kept up to date and performance reviews are properly utilized to ensure he has a clear understanding of his duties and responsibilities, and the employer’s expectations with respect to his performance.
An accurate performance review that properly identifies any performance deficiencies or behavioural issues sets out the steps the employer expects the employee to take to correct them — and identifies the possible consequences of a failure to do so — serves two purposes.
Firstly, it provides documented evidence the employer both identified any issues with the employee and gave her the opportunity to improve, which the employer can rely on if these problems persist. Secondly, it may in fact resolve the problem by giving the employee the tools she needs to correct her performance or behaviour.
Managers and supervisors should be trained in the art of providing negative feedback. And, of course, once they speak with an employee and tell her of their concern and the potential consequences of a failure to improve, they should document that.
While the goal is not to build a file in order to be able to fire an employee, it is important to have documentation available to support summary dismissal if it becomes appropriate. Employers should have the confidence to provide negative feedback when it is warranted and to ensure any and all concerns are documented, both in response to particular events and in formal performance reviews.
Concerns, complaints, accommodation requests
It is just as important for employers to keep thorough documentation with respect to issues raised by an employee in the workplace, including complaints about fellow employees, supervisors or managers, allegations of discriminatory treatment, workplace harassment or workplace violence, and requests for accommodation. An employer has an obligation to respond and take necessary steps to address such complaints or requests, and these actions should be clearly documented.
For example, if an employer meets with an employee to discuss his return to work following an injury and to review an individual accommodation plan, that meeting should be documented.
Similarly, if an employer interviews witnesses as part of its investigation into an employee’s allegation of workplace harassment, those interviews should be clearly documented and notes maintained.
In certain cases, maintaining documentary evidence of an employer’s efforts to meet its obligations is not only practical, it is required by law. For example, under the Accessibility for Ontarians with Disabilities Act, 2005, as of Jan. 1, 2016, Ontario employers with 50 or more employees are required to develop documented individual accommodation plans for employees with disabilities, in addition to a written process for the development of same.
Similarly, new amendments to the Occupational Health and Safety Act — coming into effect as of Sept. 8, 2016 — will require that a worker and the alleged harasser are informed in writing of the results of an investigation into incidents and complaints of workplace harassment.
As recent case law has demonstrated, it is critical that all requests for accommodation be taken seriously. Employers should document efforts to assess the need for accommodation and, if applicable, potential forms thereof.
Simply dismissing the request out of hand will be fatal, as will a lack of documentation.
A failure to document efforts can make it very difficult for an employer to establish that it fulfilled its obligations in this regard, and can expose the employer to damages as well as increased legal costs.
Although maintaining a thoroughly documented employee file may be time-consuming, the benefits and protection it provides for employers far exceeds the costs of doing so.
Stuart Rudner is a founding partner and Brittany Taylor is an associate lawyer at Rudner MacDonald in Toronto. For more information, visit rudnermacdonald.com.
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