Canadian HR Reporter

CANADIAN HR REPORTER May 30, 2016 14 FEATURES EMPLOYMENT LAW Document, document, document Thorough files key for performance management, accommodation, complaints By Stuart Rudner and Brittany Taylor I t is one thing to do the right thing, but quite another to prove it. at's an issue employers often run into when it comes to a lack of documentation — whether relating to issues such as perfor- mance management, policies, misconduct and discipline, em- ployee complaints — including allegations of workplace harass- ment 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 per- formance reviews and no indica- tion of any concerns. Without this evidence, it will be virtually impos- sible for the employer to satisfy a court it had just cause for dismissal. Providing negative feedback or a documented response to a con- cern or complaint can be uncom- fortable or might seem excessive in situations where the issue be- ing 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 situ- ation 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 em- ployer, exposing it to the risk of damages and increased legal costs down the road. e documentation contained in an employee's personnel file will typically form the primary evidentiary basis to support an employer's decision to disci- pline or dismiss an employee for performance or behavioural issues, to demonstrate it has re- sponded 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 un- documented — is simply trying to preserve peace in the workplace. e 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 warn- ings and meetings with the em- ployee, copies of written warn- ings, records of suspensions im- posed or training provided to the employee, copies of performance improvement plans implement- ed with the employee, and final warnings — there will be a stron- ger basis for the decision to termi- nate with cause. Most employees want to per- form in accordance with their employer's expectations. If an employer never raises issues with respect to performance or behav- iour in the workplace with the employee, the employee may not understand clearly what those ex- pectations are. As a result, the issues may simply continue, resulting in the inefficient operation of the workplace, potential conflicts between employees or with cus- tomers, and rising unhappiness with the employee on the part of the employer. An employer should also en- sure an employee's job descrip- tion is kept up to date and per- formance reviews are properly utilized to ensure he has a clear understanding of his duties and responsibilities, and the employ- er'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 con- sequences of a failure to do so — serves two purposes. Firstly, it provides documented evidence the employer both iden- tified any issues with the employ- ee 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 conse- quences 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 sup- port summary dismissal if it be- comes 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 employ- ers to keep thorough documenta- tion with respect to issues raised by an employee in the workplace, including complaints about fellow employees, supervisors or manag- ers, allegations of discriminatory treatment, workplace harassment or workplace violence, and re- quests for accommodation. An employer has an obligation to respond and take necessary steps to address such complaints or re- quests, and these actions should be clearly documented. For example, if an employer meets with an employee to dis- cuss his return to work following an injury and to review an indi- vidual accommodation plan, that meeting should be documented. Similarly, if an employer in- terviews witnesses as part of its investigation into an employee's allegation of workplace harass- ment, those interviews should be clearly documented and notes maintained. In certain cases, maintaining documentary evidence of an em- ployer's efforts to meet its obliga- tions is not only practical, it is re- quired 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 ha- rasser are informed in writing of the results of an investigation into incidents and complaints of work- place harassment. As recent case law has dem- onstrated, it is critical that all requests for accommodation be taken seriously. Employers should document efforts to as- sess 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 ful- filled its obligations in this regard, and can expose the employer to damages as well as increased le- gal costs. Although maintaining a thor- oughly documented employee file may be time-consuming, the ben- efits 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 To- ronto. For more information, visit rud- nermacdonald.com. Credit: Mmaxer (Shutterstock)

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