One area of practical importance to employers is an employee’s right to examine material contained in his or her personnel file. Often times an employee will request a copy of his or her employee personnel file. Sometimes the request arises in the context of a workplace dispute or in a civil claim against the employer where the employee's representative makes such a demand. In most instances, an employer does not know whether to cooperate or push back. That's when the phone rings and the caller says: "Person X asked to see his/her personnel file, do I have to provide it?" In classic lawyer fashion, the answer is: it depends.
Provincial Differences
Employee privacy law is not uniform across all jurisdictions. In particular, for federally regulated employers (such as banks and airlines), the collection, use, disclosure, storage and security of personal information is governed by the Personal Information Protection and Electronic Documents Act (PIPEDA). Alberta, British Columbia, and Quebec are exempt from PIPEDA's purview as each of these provinces has its own privacy legislation which governs employers carrying on business in those Provinces.
Recent decisions from the Office of the Information and Privacy Commissioner in Alberta and the Supreme Court of British Columbia focused on exceptions to an employee’s right of access and highlighted that more than one exception to the provinces’ respective legislative schemes might apply at the same time. However, these decisions also note that these exceptions are not always clear and that they are to be determined and applied on a case-by-case basis. For provinces and territories where employer/employee privacy legislation does not exist, these principles concerning exceptions are of limited applicability.
Employees in federally regulated workplaces, as well as employees in Alberta, British Columbia and Quebec are entitled to access their personnel files. In fact, not only can employees in these jurisdictions view their personnel files (subject to certain limitations including related to the sharing of information about third parties or ongoing investigations), they also have the right to challenge the accuracy and comprehensiveness of the information in their personnel files and to ask to amend their contents, if inaccurate.
In Ontario, where employer/employee privacy legislation does not exist, an employer's obligation in connection with an employee's request to view his or her personnel file may be governed by a workplace policy or contractual agreement. If an employment contract or a workplace policy does not impose any obligations on an employer to provide an employee with a copy of his or her personnel file, an Ontario employee's request for a copy of same may be properly denied on the basis that an employer's file about an employee is considered to be the employer's property, even though it contains information about the employee.
Practical Tips
From a practical perspective, we usually recommend that if the employee had received a document in the first instance, they be given access to it (and a copy) upon their request. Where a document reveals confidential information about other employees, other than the requestor, such information should be redacted from the relevant document. Moreover, you need to consider if you have employees in jurisdictions that allow for access, in which case you may want to adopt that practice across the board.
The author would like to thank Ryan Albaum, articling student at law at Stikeman Elliott LLP, and Nathan Williams, summer law student at Stikeman Elliott LLP, for their contributions to this article.
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