The Importance of Documentation in Employment Law Cases

One of the things I am asked a lot is: “The company terminated me, and I think it’s unfair. Can I file a case?”

While filing a case is sometimes the best thing to do, there are things that should be considered before you start, such as having all the necessary documents. And one of the main problems with giving advice on unfair employment issues, is the lack of documents that employees keep, or even get from their employer.

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There are certain documents that you should always keep whilst you are in employment, and for at least a year after you leave. While they are not “necessary” for filing a case against an employer for illegal dismissal, or whatever, they are very useful in deciding whether there is actually a case to be filed. Moreover, when filing a case in NLRC, it is useful to have all the documents surrounding your case before you present Position Papers to the Labor Arbiter, rather than wait for the employer to provide them for you.

Some of the main documents that you should keep are:

Job Offer

shutterstock_328831583This document, while it may not seem important (and quite often a company does not give the new employee a copy, so ask for it), shows you the exact job description of the work you are going to be required to do. In any legal case where an employee is terminated during the probationary period for failing to meet the standard requirements for regularization, many companies use this as their “evidence” that the requirements were made known to the employee at the start of the employment.

This only applies to “managerial” employees, as their job description is the same in every company they work in, such as an Operations Manager in a call center. For non-managerial employees, whose regularization relies on them passing some form of scorecard (again, mainly call center agents), the job offer is not a valid example of the employer meeting the legal requirement of making the standard requirements for regularization known to the employee at the start of their employment.

Contract of Employment

shutterstock_126306221Again, this is a document that many companies ask you to sign, and then never give you a copy. I have personally worked for four companies where they did not provide the copy of the contract until I actually asked for it, and even then, one of those companies (who shall not remain nameless, KGB!) proceeded to give me a blank, unsigned copy, and tried to tell me that this met their legal requirements.

Your contract is the basis of your whole employment, and is an important document in deciding not just whether to file a case for illegal dismissal, etc, but also whether there are unfair terms in the contract that you may have to watch out for if you leave or get terminated. Many companies add clauses about “loyalty” and “training” bonds, which are wholly unenforceable under law, as these constitute grossly unfair terms within the contracts. If the company then decides to deduct the “bonds” from your final pay, you need the contract to show your lawyer or legal adviser (me!) the exact terms that they are referring to in the contract.

Corrective Action Documents

noticeofpreventivesuspensionwithnte-130902015835-phpapp01-thumbnail-4This is the most forgotten document of any employee. Once the completion of any corrective action against you is done, you cannot get copies of the documents unless you have a case in NLRC, and make a request under law to obtain them from the company. And it is these documents that are going to be needed to base your case on. Everything from the first memo you get, to the Notice To Explain (NTE), and the actual Corrective Action Form or Decision Memo from the management, should be received as a copy of the original, and should be kept in case anything happens.

Many cases for illegal dismissal find themselves in NLRC without the relevant documents to say why they were dismissed, and rely solely on their own idea that “the dismissal was not fair, and I don’t think they should be allowed to do that”. If you have kept all your corrective action documentation, then when you are asking if the dismissal is fair, your legal adviser (me again!) can give you much better advice on whether it really was illegal dismissal or not. I recently advised a call center agent who thought their own dismissal was unfair, and illegal, when the company had actually (for once!) followed the correct procedure to the letter. After advising them of this, and advising them that they had no case to bring, the person dropped the case in NLRC and moved on, with better knowledge on how dismissals really work, just in case it ever happened again.

Training Documents

shutterstock_499060420Believe it or not, this is one of the things that people tend to throw out, thinking that, because it was “just training” it is not relevant once they start working on the shop floor, or site, or whatever. If there are any Corrective Action documents, they must be kept, as they carry over into the probationary working period, and then on into regularization, even if the company says it all “starts from scratch” once training is over. Your trainers and supervisors will always tell you two different things, and HR will tell you what will really happen. Keep your training agreement as well ,if you have one, as these are the most ridiculous forms of “contracts” that I have ever had the displeasure of reading. Many companies that provide paid training, which are mainly call centers, ask you to sign a training agreement, that gives you a completely different set of rules from that you will be expected to adhere to after training is over. For example, one company I know terminates trainees if they are what is called “Absent Behavioral” more than once. Two instances of ABSB, as it is commonly known, means termination. ABSB is normally defined as “not notifying your supervisor or workforce more than two hours before your shift starts, or only notifying after the start of your shift”. However, in the employee manuals of this company, ABSB is actually defined as “when an employee calls in or attends work only after the shift has started”. This is one issue that I will be posting about later, and will be asking for people’s feedback on whether they wish to file a claim for illegal dismissal, based on their termination for this ground.

Emails

shutterstock_344001515Yes, even your emails can be used as evidence to prove something has been done illegally. If you have been the subject of any serious disciplinary action, which has left you at the point of “Final Warning”, it is a good idea to forward any emails you may have that can help your case to your own personal email address, just in case they remove your access from the computer systems. While they may say that this is proprietary information, as long as you delete any company-sensitive details from the email header or body, it is fully admissible as evidence. And they will use emails against you as evidence of their case as well.

Other Documents

shutterstock_652014064If you have received any other documents of any kind, it is a good idea to keep them. Many things can be used as evidence against an employer in a case of illegal dismissal, and the best thing to do is just keep everything, and let your legal counsel decide if it is useable.

 

 

So, to conclude, keep ALL your documents, just in case you might need them in the future. You never know when things are going to go wrong…

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