The Importance of Retaining Evidence

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In any potential disputes, whether it is employee-related, customer-related, or some other commercial dispute, it is important for members to have all relevant evidence on hand and readily accessible should they be required to present this or rely on it when a claim may arise.

Relevant evidence for disputes with customers or employees can take a number of forms such as written warning letters, transcripts of meetings, emails, texts etc.

Whilst verbal warnings and discussions will not be necessarily invalid and can carry weight, there are obvious issues with proving that they occurred and the content of them. As such, it is always advised that these should be put into some form of writing so that there is no dispute later as to their existence and content. This will all mean more paperwork for a business, but their value will be well worth it.

Awards and legislation also require employers to maintain certain records that can be of great use in potential underpayment and unfair dismissal claims. For example, there is an obligation to have a written agreement and confirmation of employment status, award classification and hours of work when engaging employees; the casual conversion process; time off in lieu arrangements; cash payment in lieu of annual leave; and commission-based payments, to name just some of the requirements.

Looking more specifically at one type of potential evidence that is becoming more prevalent, CCTV footage, or other surveillance devices such as GPS tracking or data surveillance, this is something that can be of great benefit to a member should they possess it. Primarily these sorts of devices would be obtained by businesses as protection from theft or issues arising from external threats, but depending on the event, they can certainly be of assistance in a number of staff issues. Video footage of an event can help you avoid having to engage in a “he said, she said” argument that will always pose a risk.

Most CCTV systems will only retain footage for a limited period however and some only for as little as 24 hours. Due to the potentially limited retention period, where a member believes that they have footage that could be of evidentiary value they should make every effort to copy the relevant period of footage as soon as possible.

Cost and electronic storage space will often dictate the ability for a business to not only get CCTV but also how long the system they get will be able to retain footage. Where the time is limited there is more reason to be aware of the retention period so that the risk of losing potentially important evidence is lessened.

Lastly, a member needs to be aware of the relevant privacy laws that will apply to the use of CCTV, whether that be just video or also audio and should have some form of either express or implied consent from their employees to have these in the workplace. A failure to do so could not only mean that the evidence will not be admissible but could also lead to other fines under relevant legislation.

If members are unsure about what records or documents should be retained, they can contact the WR team to discuss any of the above further on 8291 2000 or email