September 27, 2017
When an employee is disciplined or terminated, employers need to be cognizant of potential sources of evidence that require preservation. Employers often capture employee misconduct on videotape, through workplace emails or by reviewing company phone records. When this misconduct leads to employee discipline or dismissal for cause, employers should act quickly to retain and maintain the integrity of these records.
An employer has no lack of incentive to gather all of the potential evidence at its disposal to defend its employment decisions. An employer bears the onus of proving just cause in the case of a dismissal and may have to justify its actions where an employee alleges discrimination or reprisal under the Human Rights Code or Occupational Health and Safety Act.
Furthermore, an employer who loses or destroys material evidence should litigation arise may be subject to the doctrine of spoliation in the event litigation arises. Under these circumstances, a presumption may be made against the employer that the destroyed evidence would not have been favourable to them.
An employee will generally have two (2) years to bring a civil claim against an employer in accordance with the Limitations Act, 2002. Employers should be mindful of this and make it a policy to maintain relevant records for at least two (2) years after termination. The most relevant types of documents that should be retained are set out below.
1. Video Surveillance
Video surveillance records can be a highly persuasive form of evidence. Video surveillance records are like eyewitnesses but with perfect recall, and no bias. Failure to keep these recordings after they are viewed means that the person who viewed the recording will have to testify to the video’s contents. This person might forget some of the information on the video, or they may be lacking in credibility. To avoid these types of issues, video records that capture employee misconduct leading to discipline or dismissal should be maintained. The employer may also wish to take a written statement from the person who viewed the video. This statement should also be preserved.
It is important to note that some video surveillance systems are programmed to automatically delete records after a set period of time. To avoid the unintentional deletion of your records ensure the video is saved as soon as possible.
2. Employee Email
Records of employee emails may also serve as persuasive evidence of employee misconduct. Employers should move quickly to preserve existing email records after dismissal. Employers who suspect that an employee’s emails contain relevant evidence should undertake a review and make copies to ensure safe retention. Employers may want to restrict employee access to their former email accounts to avoid the risk of deletion or manipulation. Similarly, if there is a system in place to automatically delete emails after a certain period of time, relevant emails should be saved in a place where they will be maintained.
3. Laptop or Computer Hard Drive
Information found on a computer hard drive, such as files, software, or internet history can be of use to employers. A computer is essential to many occupations, and as such an employee’s work computer may contain evidence of misconduct. Employers will often recommission a used computer after deleting its contents and restoring it to manufacturer settings. If an employee who was subject to discipline or dismissal used a computer or laptop, employers should make sure to save its contents before recommission.
4. Company Phone Records
Company phone records may also provide evidence useful to employers. If the employer provides work phones, they should ensure there are ways to access work-related information and prevent loss of this information. Like emails, employers should have a method of storing this information that ensures they are not deleted or thrown out.
Please note that this list is not exhaustive. Employers should apply these principles to any documentation of possible relevance. Claims of wrongful dismissal, bad faith, or discrimination are not always foreseeable and may come as a surprise to an unsuspecting employer who is ill prepared to defend their position. Accordingly, employers should make it a policy to retain these documents for at least two (2) years post dismissal regardless of the nature of dismissal.
The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyers by email or telephone.
 Blais v. Toronto Area Transit Operating Authority, 2011 ONSC 1880 at para 72.