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THE QUESTION

I was wrongly accused of workplace bullying. This happened in 2012 and I want this removed from my file given my pending retirement. Can I force my employer to remove it?

FIRST ANSWER

Daniel Lublin
Employment lawyer, Whitten & Lublin, Toronto

Privacy laws generally allow employers to retain workplace information relating to employees for as long as there are legitimate business or legal purposes. This includes retaining information related to prior allegations of workplace bullying.

However, once you retire, and given the lengthy passage of time since the allegations were made, there is unlikely to be any ongoing legal or business justification to continue to hold records related to the allegations.

You can ask your employer to permanently destroy any records relating to the allegations. If they refuse, you may be able to bring a formal privacy complaint to a government privacy tribunal for improper retention of your personal information, without your consent.

The ability to complain to a privacy tribunal will depend on whether you are employed by a federally regulated company, such as a bank, or a provincial government. If you are part of a union, you could also seek the union's assistance.

Keep in mind, the employer's "file" is not something that is publicly available to anyone else.

THE SECOND ANSWER

Greg Conner
Executive director of human resources, BC Transit, Victoria

It sounds as if you have worked for the company for a long time, and I would certainly feel the same way you do in not wanting this to be part of your legacy. My recommendation would be to first informally talk to your human resources department and ask them to remove the documents that relate to the wrongful accusation. Many employers, particularly those in unionized environments, have timelines for keeping information relating to workplace issues on file, most commonly two years.

If that request doesn't result in a positive response, ask what the retention policy is and put in a formal request that the complaint be removed along with any other documents related to the incident. Given that you were falsely accused, this should not be a difficult decision on the part of your employer.

In the rare case that your employer will not or cannot expunge this from your file, know that your entire employee file will be destroyed after the relevant statutory timelines have passed. As to be expected in our law-loving society, there are many different statutory timelines such as those of Canada Revenue Agency, human rights, federal and provincial privacy legislation, employment standards, etc. Most are within the range of one to three years. Finally, employers must also keep in mind the limitation periods for lawsuits. Generally speaking, there is a six-year limitation period for an employee to bring an action against his or her former employer.

So I encourage you to focus on a long, happy and healthy retirement and the good work you did over your career, and do not let this one incident mar that life experience.

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