New Victorian legislation has the potential to impact on employers in respect to the retention and destruction of employment documents. This legislation is a response by the Victorian Government to well publicised allegations of document shredding against a tobacco manufacturer.
The Crimes (Document Destruction) Act 2006 creates a new indictable offence, punishable by up to five years imprisonment or by substantial fines, for the destruction of a document or other thing that is, or is reasonably likely to be, required as evidence in a legal proceeding. The offence extends to the concealment of such a document and rendering such a document illegible where such acts are done with the intention of preventing it from being used in a legal proceeding. Both an individual and corporate offence has been created, the corporate offence rendering a corporation liable by acts of associates (including employees and agents acting within the actual or apparent scope of their authority). Intention to commit an offence by a body corporate’s board of directors or an officer of a body corporate or an associate, in situations where a corporate culture existed within he body corporate that directed, encouraged, tolerated or led to the formation of that intention, will be attributed to the body corporate.
The Evidence (Document Unavailability) Act 2006 affords courts and tribunals the power to make orders where a document cannot be produced and as a result unfairness is caused to any party to the proceedings. The Court must consider the circumstances in which the document became unavailable and the impact of the unavailability of the document on the proceeding including whether the unavailability of the document will adversely affect the ability of a party to prove its case or make a full defence and any other relevant matters.
Employers are advised to develop policies to address the proper retention of the relevant documents and to educate employees and others whose actions may be attributed to a body corporate on these policies.
Documents that might be used in equal opportunity proceedings, OHS proceedings, workers compensation proceedings, long service leave matters and common law contract matters are all heard in Victorian Courts/Tribunals. As most proceedings need be started within six years it is recommended that such documents should be retained for at least six years from the cessation of work by an employee. Members also need to be aware under the federal Workplace Relations Regulations an employer must keep all the necessary records for an employee for a continuous period of seven years after the date on which any entry was changed, the employee’s employment was terminated or in any other case for a continuous period of seven years after the date on which an entry was made.
