The employee committed a violation during work and wrote an explanation for it. How long must the employer keep the employee's explanation of the violation in the personnel file? Is it necessary to keep it for more than one year?
Good document management, which also includes organizing documents and keeping documents in compliance with the requirements of regulatory acts, is one of the prerequisites for running an effective organization. Basic requirements for the management of documents and also archives in Latvia are taken care of by the Archives Law and the regulations of the Cabinet of Ministers (MK) issued on its basis, as well as in some cases the duration of storage of specific documents is determined in special legal acts corresponding to the relevant field.
It should be noted that the regulations of the Archives Law are different for institutions and private individuals, while it is not clear from the question whether the question was asked from the perspective of public or private law. Despite some differences, both public institutions and private individuals in the management of private documents are required by law to preserve documents with archival value, including defining storage terms for documents certifying the progress of a person's work or service, which have archival value.
Documents with archival value
MK regulations No. 690 "Rules on documents certifying a person's work or service progress and education, which have archival value, and their storage terms" provide for 12 different documents certifying a person's work progress with a list of archival values:
- documents on the establishment, amendment and termination of legal employment relations (order documents, employment contracts and their amendments, notices and agreements on the termination of employment relations), equivalent documents and their registers;
- lists of employees with an indication of the position held, if such are prepared;
- position and job descriptions;
- company contracts, amendments to company contracts and their registers;
- opinions about the employee's inability to perform duties due to health conditions;
- documents of the order on child care leave issued until December 31, 1996 and their registers;
- unclaimed work books and their registers;
- collective labor agreements, documents on their amendments and termination;
- minutes of the general meeting (conference) of employees;
- collective rights or collective interest dispute settlement documents;
- author's contracts, amendments to author's contracts and their registers, if they specify the transfer of the author's property relations;
- documents on foreign business trips are reviewed by state administration institutions, if they contain information of historical, social, cultural or scientific significance.
Regulation No. 690 of the Council of Ministers also provides for specific terms for the storage of documents. For example, from the above list, documents on the establishment, amendment and termination of employment legal relations must be kept for 90 years from the date of birth of the persons mentioned therein, or 75 years if the date of birth of the persons is not known, or if there are archived documents on several persons in the case, or the archived document removal from the case requires a disproportionate effort.
In the above-mentioned list, there are no documents with archival value confirming the person's work progress, which could be attributed to the explanations of violations included in the employee's file or other materials of the employee's disciplinary case, accordingly, it can be fairly safely stated that these documents have no archival value for confirming the person's work progress and it is not necessary store these documents as long as other documents in the employee's personal file. In practice, however, such documents are automatically placed in a person's file and, accordingly, are kept for the same length of time.
Document storage terms
Documents can be divided into temporarily and permanently stored documents according to their storage period. The temporarily stored documents are stored either temporarily for up to 10 years, or for a long time for more than 10 years. Permanent documents are kept forever. On the other hand, archivally valuable documents need to be stored either for a long time, that is, over 10 years, but not forever, or permanently or forever.
For some documents, the legal acts determine their storage period, but for some documents, the company itself must evaluate the duration of their storage and essentially decide how long to keep or not to keep the relevant documents. The regulation of employee disciplinary cases and the applicable disciplinary penalties resulting from Article 90 of the Labor Law (DL) can be found only in the DL, and a separate regulatory act does not provide for the regulation of disciplinary cases of employees in the legal relations regulated by the DL. Accordingly, neither the DL nor any of the MK regulations issued on the basis of the DL contain a specific term for keeping documents related to the employee's disciplinary case, and the term for keeping these documents can be decided by the organization itself.
MK regulations No. 748 "Regulations for the management of documents and archives" provide criteria for determining the term of document storage. At the same time, it should be emphasized that the observance of these rules is mandatory for public institutions, for a private organization, the application of these rules for the management of private documents and archives is voluntary. In practice, however, private organizations are very often guided by the regulations of the Ministry of Internal Affairs No. 748 in the management of their documents.
In accordance with the provisions of the MK No. 748, the storage terms of documents and archivally valuable documents are determined by observing the following criteria:
- the storage period specified in the regulatory acts;
- the storage period necessary to ensure the institution's functions;
- The criteria for determining the archival value determined in Section 8, Part 1 of the Archives Law.
Accordingly, the essential condition for determining the storage period of a document is how long this document is needed to ensure the institution's functions. Similarly, when determining the term of document storage and archivally valuable documents, institutions can use the sample lists of standard document storage terms developed by the National Archives of Latvia and publicly available on the website of the National Archives of Latvia.
Regulation of employee disciplinary matters
In a situation where an employee has committed a violation of the established work order or employment contract, the employee may be subject to disciplinary punishment. Before issuing a remark or a reprimand, the employer is obliged to inform the employee in writing of the nature of the violation committed by him and to request a written explanation of the violation from him.
In accordance with Article 90, Part 3 of the Labor Code, a remark or reprimand shall be issued no later than one month from the date of discovery of the violation, excluding the time of the employee's temporary incapacity for work, as well as the time when the employee is on vacation or does not perform work for other justifiable reasons, but no later than 12 within months from the date of the offense. On the other hand, the employee has the right to demand the cancellation of the applied remark or reprimand within a month from the day of the remark or reprimand. If within seven days, when considering a complaint about the cancellation of a note or reprimand, the employer makes a decision not to cancel the note or reprimand, the employee has the right to file a lawsuit within one month from the day the relevant decision of the employer is received. If no new remark or reprimand has been given to the employee within a year from the day of the remark or reprimand, he is considered not to have been disciplined.
In fact, within a year of the application of the disciplinary penalty, the employee could be considered not to have been disciplined. Accordingly, it can be concluded that the documents drawn up within the framework of employee disciplinary cases, including the employee's explanations, could lose their relevance after the mentioned deadline, unless legal proceedings are still ongoing within the specific dispute. In addition, since such documents have no archival value, their storage period should be defined as temporary or up to 10 years according to the Archives Law. However, specific storage terms must be determined within each company by developing the appropriate nomenclature of cases.
Source: ITiesības