THE QUESTION
I left a job a year ago, but would be interested in applying for positions at the institution in the future. I had a couple of subordinates who made false claims about me before I left. There was no proof. It was just hearsay. I explained that the claims were false and provided explanations. However, upon requesting my files recently, I saw that there are records of the false claims with no records of my explanations or evidence. HR told me that the employee does not determine what is in their files, and refuses to assist in properly amending the files. I’m worried that if I decide to apply for a position in the future, HR will use the files to prevent me from consideration.
THE FIRST ANSWER
Nadia Halum Arauz, associate, Whitten & Lublin Employment Lawyers, Toronto, Ont.
What must go into an employee’s file is typically dictated by legislation that deals with employment standards. However, such legislation mostly requires that certain records are kept regarding when employees worked and how much they earned. What employers choose to include in files beyond these minimum requirements is left at the discretion of the employer, unless there is a collective agreement or policy that addresses this question.
Having said that, depending on the province where the employee works, employers may have a duty to investigate certain incidents, typically workplace harassment incidents. Depending on the wording of the legislation requiring an investigation, the employer may be required to complete one, even if some of the parties of the complaint are no longer employed.
Having the employer conduct an investigation into the matter may be the only way of setting the record straight, as the allegations would have to be investigated and there would be a finding on whether they were false or not. While that may be a strategy that is open to the employee, if the objective is for them to potentially become re-employed at the company, such a strategy may be counterproductive. The employee may also explore civil claims against the co-workers.
THE SECOND ANSWER
Greg Conner, vice president, people and culture, BC Transit, Victoria, B.C.
First, let me start by saying my recommendations are strictly from the perspective of a human resources practitioner.
Your former employer, through its HR department and team, has an ethical and professional responsibility to investigate claims made against employees by other employees, regardless of whether they are past or present. At a minimum, there should have been a record of your explanation and evidence that supported your position included on your personnel file. Ideally, there would have been a formal investigation, with findings recorded. Adding unsubstantiated claims by former colleagues to your personnel file, without any form of fact-checking, or opportunity for you to respond to their claims, would not be considered appropriate due diligence.
My recommendation would be to write to the HR director, with a copy to the institution’s president/CEO, indicating your desire to possibly return at some point. Accordingly, request an investigation of the claims made by your former subordinates, taking into account your evidence and explanation. You may also wish to highlight in your submission that, even if you never return, it is only right that your personnel file reflects the accurate and founded details of your employment history. Just because the employment contract has ended, does not mean the institution does not need to uphold the principles behind it.
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