Document, document, DOCUMENT!!

A client came to me with a big problem: a former employee had filed a complaint with the Ontario Human Rights Commission, claiming he was terminated because of disability.

That’s always bad news.  No matter how it turns out, you will spend money on legal fees and an inordinate amount of time going through the complaints process.

In this case, the employee was diabetic.  Accordingly, he had more doctor’s appointments than average.  He was always given the time to attend them.  The supervisor even monitored him, mindful of the symptoms of blood sugar imbalance, and would encourage the employee to eat or take a break when necessary.

The problem was that the employee didn’t care much about his condition.  He had diabetic episodes as a result of not bothering to eat or take his medication.  The employer, on many occasions, had to call an ambulance.  The paramedics would chastise the employee for his negligent care of himself.  The employer had given the employee a written warning that he had an obligation to care for himself and that future avoidable medical emergencies were going to result in discipline.

On top of that, the employee’s performance was terrible.  He had a history of poor performance and had been disciplined many times for it.  He had acknowledged in writing that his attitude was bad and that he was capable of doing the job, but that he was performing poorly.

One day, he had requested (and was granted) permission to go to a doctor’s appointment mid-morning.  The employer required the employee to show up at 8 a.m., do one essential task, attend his appointment and return after.  He didn’t show.  It was the last straw and he was terminated.

Now, he was spinning the facts and claiming that the employer had disciplined and terminated him because he was diabetic. 

Thankfully, the General Manager had copious, contemporaneous notes of every incident.  The personnel file on this fellow was very thick.

We were able to make a good argument, supported by documentary evidence, that the termination was not related to his disability, but his performance.  We sent in a copy of every note and document in the file.

In the end, the employee did not pursue the complaint any further and the complaint was dismissed. 

This case is unusual, in that most employers, in my experience, are terrible at keeping a well-documented personnel file.  Without the notes, we would have been in big trouble, in that the case would have been a “He said, she said” credibility argument.  If that had been the case, we very well might have lost.  That would have made for a very frustrated employer, who would have likely had to pay a damage award on top of their legal bills.

I tell employers this: if you think you will ever want to rely on an incident in the future, you had better document it.  Taking notes will take a little time, but can save tremendous amounts of money and time later.  No documents means taking a chance.