TABLE OF CONTENTS

I. INTRODUCTION 2

II. RESIGNATION 2

III. DISMISSAL WITHOUT CAUSE 7

IV. DISMISSAL FOR JUST CAUSE 10

V. CONSTRUCTIVE DISMISSAL 13

VI. INVESTIGATING AND DOCUMENTING MISCONDUCT - POOR PERFORMANCE •..•.•••.....••.•.. 15

VII. RESPONDING TO COMPLAINTS OF MISCONDUCT - POOR PERFORMANCE 17

VIII. WHAT CONSTITUTES JUST CAUSE? 19

IX. IS THERE ROOM FOR PROGRESSIVE DISCIPLINE IN A NON-UNION SETTING? .•......••...••.•... 23

X. CONCLUSION 28

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TERMINATION WITH OR WITHOUT CAUSE

I. INTRODUCTION

The employment relationship, like any other contractual relationship, begins when an employer

issues an offer of employment and the employee accepts the offer. The relationship ends either

through resignation, dismissal or constructive dismissal. Termination, or dismissal, by an

employer, can be with or without cause, and an employee can resign or sue for damages in .

constructive dismissal if certain circumstances exist. There are legal requirements necessary in

order to resign lawfully and remedies are available to assist employers in instances where

resignation has been unlawful. Where an employee quits his or her employment in response to

repudiatory conduct on the employer's part, it is called "constructive dismissal" and the

employee is entitled to sue for "wrongful dismissal". The incidence of "constructive dismissal"

litigation has increased over the last ten years largely in response to an attempt by employers to

obtain greater flexibility in modifying work assignments, work scheduling and other terms and

conditions of employment. "Dismissal" includes the termination ofthe employment contract by

the employer serving notice of termination, or wages in lieu ofnotice. Labour standards

legislation requires employers to provide minimum notice _of termination, or wages in lieu of

termination. As well, certain legislation also provides additional notice, or wages in lieu of

notice, in situations where groups ofworkers of a defined size are to be terminated. Dismissal

for cause, or summary dismissal, does not require an employer to provide notice or wages in lieu

ofnotice. However, the employer is required to establish just cause in order to avoid a potential

damage award.

II. RESIGNATION

Resignation is a phrase used to describe the termination of the employment relationship at the

initiative of the employee. An employee can be considered to have resigned his or her

employment where the employee terminates after giving notice to the employer ofhis or her

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intention to do so, terminates employment after giving inadequate notice, or gives no notice at

all, but fails to come to work in circumstances where the employer may treat the failure to come

to work as confirmation ofthe employee's intention no longer to be bound by the contract of

employment. In all of these circumstances there will only be a resignation if the employee

intends to sever the employment relationship and a reasonable person in the position of the

employer would believe that this was the employee's intent. The distinction between quitting

and dismissal can have important implications under unemployment legislation. Under the

amendments enacted to the Unemployment Insurance Act, R.S.C. 1985, c. U-l, as amended, an

employee who resigns his or her employment without 'just cause" is disqualified from receiving

benefits.

Under the common law, notice obligations in the employment relationship are reciprocal. The

periods ofnotice that employees are required to give have evolved in the same way as the

employer's obligation has. Employment is presumed to be indefinite, and terminable upon

reasonable notice, barring agreement to the contrary. The period of "reasonable notice" does not

need to be identical for the employer and the employee. There are different purposes forming

the basis of "reasonable notice" for these two parties. The determination of "reasonable notice"

on the employer's part is influenced by the policy of "cushioning" the worker against

unemployment. The purpose ofdetermining "reasonable notice" on the employee's part is to

allow the employer sufficient time to hire and train a replacement or modify operations due to

the employee's absence. "Reasonable notice" for an employee is typically therefore less than

"reasonable notice" for an employer and is relatively short except for employees occupying

positions with limited supply in the labour market.

Where a contract of employment is terminated by the employee resigning with due notice, the

issue which often arises is whether or not there are any continuing obligations between the

employer and the employee during the notice period. During the notice period, the employment

relationship is in full effect and the employer is not entitled to terminate without cause or due

notice: Smith v. Hostess Frito-Lay Co., [1994] A.I. No. 483, 5 C.C.E.L. (2d) 33 (C.A.). After

the notice period has passed, the employment relationship is at an end. No statutory obligations

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dependent on an employment relationship continue beyond this point. Whether or not express or

implied contractual obligations will continue to bind either party depends on the intent of the

parties that any obligation should continue after the termination of the employment relationship.

A valid restrictive covenant under which an employee has agreed not to compete with his or her

employer for a stated period of time after leaving employment is intended to survive the

resignation of the employee. According to the Supreme Court of Canada in Canadian Aero

Service Ltd. v. O'Malley, [1974] S.C.R. 592 an employee's fiduciary obligation also continues

beyond resignation. The obligation of an employee not to disclose trade secrets and other

confidential information also continues.

An employee who resigns without giving the notice required by his or her contract of

employment either expressly or by custom is in breach of the contract. In this case, the employer

will be entitled to remedies under common law. According to general contract law principles,

resigning without proper notice is a repudiatory breach in the employment contract which brings

the contract to an end or gives the employer the choice of accepting the repudiation and ending

the contract or refusing it and keeping the contract alive. One reason an employer might want to

force continuance ofa working relationship throughout the employee's notice period is if the

position in question involves an individual who is highly skilled or is a position where it is

difficult to recruit suitable candidates due to a shortage ofqualified labour. In these

circumstances, requiring an employee to remain at work would give the employer more time to

find a replacement.

Sometimes it is difficult to determine whether the employment relationship has ended due to a

resignation on the employee's part or by a dismissal on the part ofthe employer. The courts

have held that a valid resignation must have a subjective as well as an objective element. The

subjective element requires conduct on the employee's part that unequivocally demonstrates that

he or she had the subjective intent ofresigning. The objective element requires there to be

conduct on the employee's part that would lead a reasonable person in the employer's position to

believe that the employee had carried out his or her subjective intention. In all wrongful

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dismissal actions, the burden ofproving that the employee has been dismissed rests with the

employee. The employee must prove that he or she has not resigned if the employer is alleging a

prima facie case of resignation.

The importance ofhaving an objective as well as a subjective requirement is shown bestin a

situation where an employee leaves a job following an emotional confrontation with his or her

employer. The courts have held that a reasonable person would not conclude that the plaintiff

carried out his or her stated intention ofresigningifthe actions of the employee were a

"spontaneous outburst of anger": Cox v. Victoria Plywood Co-operative Assn., [1993] B.C.J. No.

2788. In order to avoid a wrongful dismissal claim, therefore, employers are well advised to

allow employees resigning in emotional circumstances a reasonable "cooling-off' period before

asking him or her to confirm the resignation.

Courts also require "clear and unequivocal" evidence of a resignation to satisfy the objective

limb. An analysis of the subjective element is also important where the employer presents the

employee with the ultimatum ofeither resigning or being terminated. It may appear that the

employee intends to resign but an analysis of the subjective component is necessary to determine

if the employee genuinely and without duress intended to terminate the contract. There will only

be a valid resignation if the employee makes a reasoned assessment that it is in the employee's

best interests to resign.

In Canada the common law remedy for resigning without adequate notice is damages. There are,

however, relatively infrequent awards in this area, which would indicate that employers seldom

seek this relief. This is likely because damages awarded against employees will be too low to

make litigation worthwhile. According to the general rules of contract law, the employer is

entitled to be put in the position that it would have been in had the employee honoured the

contractual obligation to work during the notice period: Victoria Laundry (Windsor) Ltd. v.

Newman Industries Ltd., [1949] 2 K.B. 528 (C.A.). The amount of damages recoverable from

most employees for a wrongful resignation will likely be low, save for those hired in executive,

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technical or professional positions, or perhaps highly paid entertainers or professional athletes:

Tree Savers International Ltd. v. Savoy, [1992] A.J. No. 61, 39 C.C.E.L. 253.

The case Diachinsky v. Cree Lake Air Inc. [2005] S.l. No. 632 (Q.B.) involved an action for

wrongful tennination. The plaintiff was hired from 1998 to 2001 as a chief pilot and operations

manager for the employer's air taxi service. Each year the plaintiff was hired in the spring until

the end of September on the understanding he would apply again in the spring. In spring of2002

the employee complained about wages and employer tenninated for fear ofnot being able to get

another pilot if employee resigned mid-season. The Court held that the plaintiffs expression of

unhappiness was not a resignation and he was entitled to two months salary.

In Lesy v. Action Express Ltd., [2003] F.e.J. No. 1900 the employer brought an application for

judicial review of a decision by an adjudicator under the Canada Labour Code which held Lesy

was unjustly dismissed. Lesy persistently lobbied her supervisors for a salary increase. When

her supervisor failed to return her calls Lesy wrote her supervisor a letter using profanity, asking

for a raise and wondering if it was preferable for her to look for other work. She apologized

verbally but later retracted it and said she was returning her company truck and wanted back pay

in addition to her final cheque. She indicated when her last day was but said she would

reconsider if she was given an appropriate raise. The employer considered her to have resigned,

but also dismissed her to avoid damage to business and property. The adjudicator said there was

no resignation and dismissal for cause was too extreme as a fonn of discipline. The Court

allowed the judicial review and returned the matter to a different adjudicator for reconsideration

as there was a clear resignation in the second letter, confinned in her evidence at the hearing.

In the decision Mekerira v. Parax Development Internationallnc., [2002] S.l. No. 478 the

plaintiffMekerira brought an action against Parax for damages for wrongful dismissal. Mekerira

was hired by Parax to develop and support clients purchasing BAAN software. The planned

client base did not materialize and when this occurred Mekerira was told he would have to start

working on other projects. When he was told this he began looking for other employment and

shortly thereafter told Parax that he had other employment. Parax claimed he was owed one

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month's salary in addition to other damages including the cost ofhis wife's airfare from India

where they were both residing at the time ofhis offer of employment. The Court held that

Mekerira's response to the employer following being told he would have to work on other

projects amounted to a resignation. As such he was not entitled to the one month salary in lieu of

notice.

III. DISMISSAL WITHOUT JUST CAUSE

Where there is no term of employment expressly agreed to or imported by custom, the law now

presumes that all contracts of employment are contracts of indefinite employment which can be

terminated upon such notice as is required by statute or common law or upon payment in lieu of

notice absent just cause. There are two categories of statutory notice requirements: those that

apply to individual terminations of employment and those that apply to collective groups of

employees of a specified size. Employees whose terms of employment are governed by the

Canada Labour Code also have a statutory entitlement to "severance pay" regardless of the

notice given.

Section 43 of The Labour Standards Act, R.S.S. 1978, c. L-1, as amended provides the minimum

notice period for all employees who have worked for at least three continuous months. Ifthe

employee has been employed for less than one year they are to be provided with one week's

notice, one to three years, two weeks' notice, three to five years, four weeks' notice, five to ten

years, five weeks' notice, and eight weeks' notice should be provided if the period of

employment is ten years or more. Section 44 of the Act also provides that payment may be made

in lieu ofnotice. The provisions dealing with group notice are contained in section 44.1 of the

Act. They provide that any employer who intends to terminate ten or more employees in anyone

establishment within any four-week period must give written notice of its intention to each

employee who will be terminated and the Minister of Labour. Four weeks' notice is required if

the number of employees is ten or more but less than fifty, eight weeks' notice is required if the

number of employees is fifty or more but less than one hundred and twelve weeks' notice is

requiredif the number of employees terminated is one hundred or more.

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Employers subject to the Canada Labour Code terminating employees who have completed

three consecutive months of continuous employment must provide notice of at least two weeks

before the termination date specified on the notice, or two weeks wages in lieu ofnotice: section

230. When an employee has completed twelve consecutive months of continuous employment

they must also provide the greater of two days wages for each completed year of employment or

five days wages as severance: section 235. When an employer is terminating the employment of

a group of fifty or more employees the employer must also give notice to the Minister ofhis

intention at least sixteen weeks before the date of termination of the employment of the

employee in the group whose employment is the first to be terminated: section 212.

These notice provisions, however, are mere statutory minimums. Unless the employment

contract provides otherwise, each employee has the right to additional common law damages.

The measure ofdamages for wrongful dismissal is the wages the employee would have earned at

his or her regular rate of pay over the period ofnotice to which he or she was entitled. The

determination of the length ofnotice is of significant importance. First, if there is an express

term in the contract specifying a notice period, this will govern. Second, in the absence of an

express term a notice period will be implied if there exists hard evidence showing that this is

what the parties themselves really intended. This may be evidenced by the organization's

policies, which have been shared with employees prior to employment. Third, if there is no

contractual provision and no implied term, the courts will imply a term of "reasonable notice",

reflecting a judge's assessment ofwhat is fair in the circumstances. The courts require that the

notice itself must be "specific, unequivocal. ..and clearly communicate[d] to the employee that

his employment will end on a certain date": Kalaman v. Singer Valve Co., [1996] B.C.I. No.

814, 19 C.C.E.L. (2d) 102 (S.C.). Anotice is "communicated" when the employee actually

receives it, not when it is mailed: McDonald v. Swift Canadian Co. (1935),9 M.P.R. 530

(N.S.C.A.).

It has become well established law that there is implied into each employment contract, absent

express or implied terms, an obligation on the part of the employer to give reasonable notice of

an intention to terminate the arrangement. In Saskatchewan, the unofficial ceiling has been set at

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eighteen months; however, in some jurisdictions the ceiling may be as high as twenty-four

months: Peterson v. Dominion Bridge (Saskatchewan), [1994] S.J. No. 601. The factors

considered in determining what is "reasonable notice" were set out by Chief Justice McRuer in

the Bardal v. Globe & Mail Ltd., [1960] OJ. No. 149,24 D.L.R. (2d) 140 (H.C.) decision as

follows:

There can be no catalogue laid down as to what is reasonable notice in particularclasses of cases. The reasonableness of the notice must be decided with referenceto each particular case, having regard to the character of the employment, thelength of service of the servant, the age of the servant and the availability ofsimilar employme:pt, having regard to the experience, training and qualificationsof the servant.

Courts generally increase the length ofnotice accordingly if there is an unavailability of alternate

employment as measured by the worker's age, the market demand for his or her particular skills

and qualifications, the general state ofthe labour market and how long he or she was

unemployed after the date ofdismissal: Wallace v. United Grain Growers Ltd., [1997] S.CJ. No.

94. According to the Wallace decision, a reasonable notice period can also be extended to reflect

the callous manner of dismissal, even though the employee's spell ofunemployment is not

prolonged as a result.

Courts have also sought to protect the seniority of transferred employees in "successor

employer" situations where one company is taken over in whole or in part by another company:

Taylor v. Dallas Investments Ltd., [1993] A.J. No. 152. The courts presume that the parties to

the employment contract impliedly intended to credit the employee's service with his previous

employer. The onus rests on the employer to rebut this presumption by notifying the employee

to the contrary. In addition, most courts have increased the period of "reasonable' notice where

the employer has induced the worker to quit a secure, well-paying job on the strength of

promises of career advancement and greater responsibility, security and compensation in the new

organization: Egan v. Alcatel Canada Inc. (2004), 33 C.C.E.L. (3d) 275.

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IV. DISMISSAL FOR JUST CAUSE

Courts analyze the employment relationship according to the principles of the general law of

contract. When one party repudiates the contract by failing to perform a major obligation or set

of obligations under the contract, or failing to perform a minor obligation with consequences so

serious that there is no point to the other party continuing, the other party has the option of

accepting the repudiation and bringing the contract to an end. The common law standards of

'just cause" have evolved considering what constitutes a "repudiatory" breach on the employee's

part. The most frequently cited test for what constitutes "repudiatory" conduct in modem

Canadian employment law is found in the dissenting judgment of Schroeder J.A. in R.v. Arthurs,

ex p. Port Arthur Shipbuilding Co. [1967] OJ. No. 972. as follows:

If an employee has been guilty of serious misconduct, habitual neglect of duty,incompetence, or conduct incompatible with his duties, or prejudicial to theemployer's business, or if he has been guilty of wilful disobedience to theemployer's orders in a matter of substance, the law recognizes the employer'sright summarily to dismiss the delinquent employee.

Under the corrective discipline doctrine, except in cases ofvery serious misconduct or

incompetence, dismissal cannot occur unless the employee has been very clearly made aware of

his or her deficiencies through a graduated series of penalties and has been given a reasonable

chance to improve. When dealing with instances ofnon-culpable behaviour, employers are also

expected to attempt to accommodate to the point of undue hardship if the reason for behaviour is

a ground protected by human rights legislation. Also, according to section 242(4) of the Canada

Labour Code, employees found to have been unjustly dismissed may be reinstated with full

retroactive pay.

According to the Saskatchewan Court of Queen's Bench, "an employee cannot be summarily

dismissed merely because an employer is displeased with the employee's performance.

Substantial misconduct or incompetence must be shown.": Colliar v. Robinson Diesel Injection

Ltd., [1988] S.J. No. 704. A single act ofmisconduct will only be grounds for summary

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dismissal or dismissal for just cause only when it is very serious in nature, when assessed against

objective criteria for measuring harm.

A wrongfully dismissed employee cannot recover compensation from the employer for losses

that he or she could reasonably have avoided. In the decision Red Deer College v. Michaels,

[1975] S.C.J. No. 81 Chief Justice Laskin in the majority judgment states as follows:

The primary rule in breach of contract cases, that a wronged plaintiff is to be putin as good a position as he would have been in if there had been properperformance by the defendant, is subject to the qualification that the defendantcannot be called upon to pay for avoidable losses which would result in anincrease in the quantum of damages payable to the plaintiff. The reference in thecase law to a "duty" to mitigate should be understood in this sense.

Simply put, the duty ofmitigation requires a dismissed employee to actively seek reasonable

suitable alternative employment. Ifhe or she fails to do so, the employer's overall obligation to

pay damages in lieu ofnotice may be decreased.

In the decision Gabriel v. Cargill Ltd., [2003] S.J. No. 700 the plaintiff admitted to diverting

cash from the defendant, falsely improving grades on grain, and taking gifts from clients in

exchange. The plaintiff, at the time ofhis termination, was a twenty-six year employee and was a

grain manager and the second most senior employee in the plant. The Court held that the

admission revealed not only poor judgment, but rather a pattern of fraud and theft which

extended over a number ofyears. As the second most senior employee the employer entrusted in

him a great degree of responsibility. It relied on his fidelity and honesty. The Court held that the

plaintiffs dishonest conduct went to the core ofhis employment relationship with Cargill. He

destroyed the element of trust that was a prerequisite ofhis continued employment with Cargill

and there was a breakdown ofthe employment relationship. The employee's action for unjust

dismissal was therefore dismissed as the Court held the employer had grounds to dismiss the

plaintiff for cause.

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The Saskatchewan Court of Queen's Bench held that the employer did not have just cause in the

decision Jasnoch v. Provincial Plating Ltd. , [2000] S.J. No. 85. In that decision the plaintiff

arranged for vacation without the approval ofthe new owners ofthe company. However, he was

allowed to take his vacation. He took extra time off because of corrective surgery. When he

returned to work he was terminated for cause. The company stated that the plaintiff was

incompetent, insubordinate and disloyal. However, they had never warned him about his

behaviour. At the time ofhis termination the plaintiff was forty-two years old and was married

with two children. His education consisted of his grade twelve plus one year of study towards

certification as a heavy-duty mechanic. He was employed for ten years with the company. The

Court held that the defendant did not have just cause for dismissal and awarded fourteen months

notice.

The decision Bonneville v. Unisource Canada Inc., [2002] S.J. No. 443 involved an action by an

employee against the defendant. The plaintiffwas a warehouse manager who had been employed

with the company for eleven years and supervised seven other employees. He was forty-three

years old at the time ofhis dismissal. He fired a pellet gun during lunch hour for target practice

in the warehouse without the company's permission against its policy which provided that no

weapons were allowed on the premises. As a result ofhis behaviour he was terminated for.

cause. The Court held that Unisource was not justified in terminating the plaintiffs employment

for breach ofthe rule as his disobedience did not constitute a fundamental breach ofthe

employment contract and was a disproportionate penalty. The Court held that given the

plaintiffs length of service, age, his senior position, his low prospects of finding a similar

position, and Unisource's restructuring, twelve months notice was appropriate. Since the trial

took place during the period ofnotice, amounts received from the other employer were

deductible, as well as a contingency of 30 per cent for anticipated future mitigation during the

notice period.

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) v. CONSTRUCTIVE DISMISSAL

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The actions of an employer may entitle the employee to quit, with or without notice, and recover

damages, with the resignation being treated as if it were wrongful dismissal by the employer.

This is known as "constructive dismissal". When one party commits a "repudiatory" breach of

the contract which either demonstrates that it no longer intends to observe the terms of the

agreement or the consequences of which deprive the innocent party of substantially all of the

benefits bargained for, then the innocent party can elect to terminate the contract and recover

damages. Assuming the employee's job duties, wages and benefits, hours of work and place of

work are terms of the contract, management cannot unilaterally change them without risking a

damages action for breach of contract or for "constructive dismissal". Management can only

make lawful unilateral changes ifit precedes them by gIving appropriate notice of termination.

One way for employers to escape a claim in constructive dismissal is to include express terms in

the employment contract giving them the discretion to modify terms and conditions of

employment. Clauses can be worded so as to give the employer either an unfettered discretion to

change terms and conditions of employment, or a more limited right to change only designated

terms. As well, contract provisions can define the conditions under which the right to modify

can be exercised. In the absence of an express provision allowing the employer to unilaterally

modify the terms of a contract, most employees would contemplate management as having some

leeway to make changes, but not the ability to rewrite the fundamental terms of the contract.

Courts have held that there are essentially three steps in proving any constructive dismissal

claim. The first is to ascertain what the express or implied terms of the contract are, the second

is to decide whether a term has been breached and the third is to determine whether the breach is

"fundamental" in nature: Stacey v. Consolidated Foods Corp. ofCanada, [1987] N.S.I. No.5.

An employee is not required to wait until the employer actually implements the unilateral change

to his or her terms and conditions of employment before resigning and suing for damages. An

anticipatory breach will be present as soon as the guilty party makes a "clear" and "absolute"

refusal to abide by the contract's terms.

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An employer is permitted to amend the compensation structure if the terms of the employment

contract, express or implied, permit the amendment. An express term must be clear and

unambiguous in order to have that effect because most courts will construe any ambiguity contra

proferentem the employer's interests: Atlantic Business Interiors Ltd. v. Hipson (2004), 32

C.C.E.L. (3d) 91. Courts have also held that an employer can modify ex gratia, discretionary

bonuses that do not form part of the contract, even though the employee might reasonably expect

the bonus system to be maintained in its previous form: Islip v. Northmount Food Services Ltd.,

[1988] B.C.J. No. 1161.

Employers are also required to act "reasonably" and "in good faith" in managing employees,

failing which, they may be subjected to damage awards for constructive dismissal. There are

some constructive dismissal claims that can only be explained on the ground that management

owes an independent duty to be 'fair' in its treatment of employees. There are typically two

broad categories of "unfair" treatment. One is where an employer treats the employee unfairly in

the procedural sense in respect of administration of terms and conditions of employment, the

second is where the employer fails to protect the employee against bullying in the workplace:

E.H Freund Ltd. v. Cogasa Mining Corp., [1983] YJ. No.9, 4 C.C.E.L. 60 (RC.C.A.); Shah v.

Xerox Canada Ltd., [1998] O.J. No. 4349, 99 C.L.L.C. 210-003 (Gen. Div.).

In the decision Maharaj v. Rosetown School Division, [2002] S.J. No. 66 the plaintiffbrought an

action against the defendant for damages for wrongful dismissal. The plaintiff was hired as a

speech and language pathologist. He was not hired as a teacher because he did not have his

teaching certificate. Following employment the plaintiff applied for his teaching certificate so

that he could earn more income. The defendant subsequently changed the program that Maharaj

was part of and he objected to the changes. He was terminated because he failed to report to

work. He also failed to follow instructions to fulfil his assigned duties. He claimed he was

employed as a speech pathologist. The employer claimed he was a teacher and should be

proceeding with his action under the collective agreement. The Court awarded damages in the

amount of sixty days income, less any unemployment benefits received. Maharaj was only hired

as a speech pathologist. Despite the mutual conduct ofthe plaintiff and the employer he was not

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) a teacher. He did not sign a written teaching contract as required by legislation. The Court

found he was constructively dismissed when his employment was terminated.

The Saskatchewan Court of Queen's Bench found an employee to be constructively dismissed in

the decision Vanderleest v. Regina (City), (1992), 91 D.L.R. (4th) 538. In that decision the

plaintiff was employed by the City for seventeen years and had been the Director of Social

Development for three years. The City admitted that there was no just cause for termination but

argued that the plaintiff voluntarily resigned. The plaintiff argued she was constructively

dismissed when she was reassigned to a non-management position. The Court allowed the

action and held the plaintiff had been constructively dismissed and was entitled to fifteen months

pay in lieu ofnotice.

In Hendersonv. Saan Stores Ltd., [2005] SJ. No. 49 the Saskatchewan Court of Queen's Bench

held that an employer could impose a probationary period as a discipline under the terms of an

employee's contract. However, the employer's decision to suspend the employee without pay

was not an implied term in the employment contract. The suspension without pay was a

unilateral and fundamental change to a term or condition of the employee's employment contract

and amounted to constructive dismissal. The employee was therefore entitled to treat the

contract of employment as being wrongfully terminated and tender his resignation. As the

employee worked for the employer in a managerial capacity for eighteen years and had an

additional two years of employment, the notice was fifteen months.

VI. INVESTIGATING AND DOCUMENTING MISCONDUCT/POOR

PERFORMANCE

Courts will very closely scrutinize the seriousness of past offences in instances of dismissal for

cause to ensure that the employee, at the time ofthe offence, was clearly warned that his or her

behaviour was unacceptable and would jeopardize his or her job ifrepeated: Parsons v. Nl

Cablesystems Inc., [1994] N.J. 275, 5 C.C.E.L. (2d) 282 (T.D.). The need to ensure warnings

were provided is even greater at common law than under a collective agreement because, unlike

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in a unionized environment, the non-unionized employee will not have the benefit of grievance

and arbitration to challenge the fairness of the previous warnings or discipline. Also, labour

arbitrators prohibit employers from reviving previous offences that are not formally brought to

the employee's attention at the time of the occurrence. It is therefore important that notes of

disciplinary meetings and or copies of all disciplinary letters be maintained as in instances of

culminating incident resulting in discharge, previous documentation will become relevant.

It is also important that all investigations and dismissals be handled in a manner considered by

the courts to be procedurally fair. Failure to handle a dismissal in a procedurally fair manner can

result in the court extending the reasonable notice period. This was the case in the decision

Baughn v. Offierski, [2001] O.J. No. 280, 5 C.C.E.L. (3d) 283 (S.C.J.) where a five-month

extension was granted because the employer had dismissed the plaintiff for theft without

conducting a fair and thorough investigation of the allegation prior to invoking dismissal. The

legal doctrine supporting an extension of the notice period due to procedural unfairness is the

doctrine of bad faith/unprofessional dismissal outlined by the Supreme Court of Canada in the

Wallace v. United Grain Growers, [1997] S.C.J. No. 94.

In the decision Regina School Division No.4 v. Hallgrimson, [2004] S.J. No. 198 the School

Division applied to quash the decision ofthe Board ofReference complaining that the scope of

the Board ofReference's investigation was over broad and that the Board erred in considering

certain of the evidence before it and holding that it was not sufficient enough to warrant

termination. The Saskatchewan Court of Queen's Bench held that the Board had the right to

determine the scope of its investigation and its decision was therefore not patently unreasonable.

The decision Rosen v. Saskatoon District Health Board, [2000] S.J. No. 83 involved an

application by Dr. Rosen for judicial review ofthe Health Board's decision to terminate his

contract without notice. Dr. Rosen did not learn ofthe particulars of the complaints against him

until long after the contract was terminated. The Saskatchewan Court of Queen's Bench held

that the Board owed Rosen the duty to act fairly by giving him notice of the reasons for his

proposed termination. It was also required to give him an opportunity to be heard. According to

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) the Court it was not sufficient for the Board to allow Rosen to respond to the final decision after

it had been made. The application to quash the decision of the Board terminating Dr. Rosen was

allowed for these reasons.

The Liik v. Saskatchewan (Minister ofHealth), [1994] SJ. No. 399 decision involved an

application for an order compelling the Minister to release written material relied upon by the

Minister in pursuing a complaint against an employee, including witness statements and a diary

of the complainant. The employee denied the allegations but the Minister refused to release the

information claiming it was exempt from access. The Court allowed the appeal holding that the

public interest in disclosure far outweighed any invasion of privacy that could result from the

disclosure which would clearly benefit the employee in his grievance.

VII. RESPONDING TO COMPLAINTS OF MISCONDUCT/POOR PERFORMANCE

When an employer becomes aware ofmisconduct or poor performance on the part of the

employee it has the choice of investigating the matter or do nothing. If the employer chooses not

to investigate the complaint he cannot later act on it if significant time has passed and nothing

has been done previously. The law of condonation is stated by the Ontario Court ofAppeal in

the case McIntyre v. Hockin [1889] a.J. No. 36 as follows:

When an employer becomes aware of misconduct on the part of his servant,sufficient to justify dismissal, he may adopt either of two courses. He maydismiss or he may overlook the fault. But he cannot retain the servant in hisemployment, and afterwards at any distance of time turn him away... If he retainsthe servant in his employment for considerable time after discovering the fault,that is condonation, and he cannot afterwards dismiss him for that fault withoutanything new. No doubt the employer ought to have a reasonable time todetermine what to do, to consider whether he will dismiss him or not, or to lookfor another servant. So also he must have full knowledge of the nature and extent

.of the fault, for he cannot forgive or condone matters of which he is not fullyinformed.

The onus ofproving condonation is on the employee. The doctrine is grounded in the concept of

procedural fairness. Unless the employer takes steps to bring the employee's deficiencies to his

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or her attention within a reasonable time the employee may believe his or her behaviour is

acceptable: Henson v. Champion Feed Services Ltd., [2005] A.J. No. 323 (Alta. Q.B.).

The doctrine of condonation requires employers to be careful in how they administer warnings to

problem employees. If an employer warns an employee that his or her employment will be

terminated for cause ifperformance does not improve, but then fails to invoke discipline when

further incidents occur, the prior warnings will be "spent" and the employer will be considered

by the courts to have condoned the performance deficiencies subsequent to the warning:

Thompson v. Birkenbach Holdings Ltd., [1997] AJ. No. 999, 32 C.C.E.L. (2d) 269.

In the decision Grafv. Saskatoon Soccer Centre Inc., [2004] SJ. No. 443 the plaintiff sued to

recover damages for losses she suffered for wrongful termination prior to the expiry ofher two­

year employment contract. The defendant claimed it had just cause to terminate her based on

disobedience, insubordination and dishonesty. The Court held that while the plaintiff did breach

management's instructions regarding'purchasing in some instances, given the defendant's

condonation of the purchases without prior approval and its failure to provide clear instructions

regarding purchases, just cause did not exist. The plaintifftherefore succeeded in proving unjust

dismissal.

In Riel v. Westfair Foods Ltd., [1995] S.J. No. 387 the Court held that the plaintiffs

inadequacies were serious and had been communicated to him by more than one person. His

behaviour in response to management's concerns indicated lack ofmotivation and disregard of

instructions. His incompetence and habitual neglect of duty amounted t6 cause, however the

formal warning letter provided to him condoned deficient performance to the date of its delivery.

The Court held that termination after delivery of the letter was a breach of contract and awarded

damages to the plaintiff for unjust dismissal.

In the Dignean v. White Bear First Nation No. 70, [1999] SJ. No. 523 decision the

Saskatchewan Court of Queen's Bench held that insubordination serious enough to warrant

dismissal for cause must be acted upon in an urgent fashion and failure to do so can amount to

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) condonation. The Court held that although there was evidence that the employer was not happy

with Mr. Dignean, they did not meet with him to discuss their concerns or give him reasons for

their concern. As his conduct persisted over a period of time and actions were not taken to

rectify it, the Court held that the failure to act amounted to condonation or forgiveness and unjust

dismissal was found to have occurred.

VIII. WHAT CONSTITUTES JUST CAUSE?

There is no simple or one answer to the question ofwhat constitutes just cause for terminating

the employment relationship. This is so because in assessing whether just cause exists one needs

to look at the particular facts and circumstances of each case including the nature of employment

at issue, the position held by and tenure of the employee, the alleged actions or conduct of the

employee and whether there are any mitigating factors to consider, and the polices and responses

of the particular employer. In short, the modem approach in determining whether just cause

exists requires adopting an analytical framework to ultimately determine whether the

employment relationship has been irreparably harmed: McKinley v. BC Tel, [2001] S.C.I. No.

. 40; [2001] 2 S.c.R. 161.

In McKinley, the Court cited with approval at page 179 the following statement ofFlinn I.A. of

the Nova Scotia Court ofAppeal in the case ofBlackburn v. Victory Credit Union Ltd. (1998),

36 C.C.E.L. (2d) 94 at page 110:

There is no definition which sets out, precisely, what conduct, or misconduct,justifies dismissal without notice, and rightly so. Each case must be determinedon its own facts ....

The Court goes on at page 180 to note that Flinn I.A., in drawing this conclusion, relied on

comments ofHoward A. Levitt, The Law ofDismissal in Canada, 2d ed. (Aurora, Ont.: Canada

Law Book, 1992) at page 124 as follows:

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What constitutes just cause in a specific situation is particularly difficult toenumerate because it depends not only on the category and possible consequencesof the misconduct, but also on the nature of the employment and the status of theemployee....

The existence of misconduct sufficient to justify cause cannot be looked at inisolation. Whether misconduct constitutes just cause has to be analyzed in thecircumstances of each case. Misconduct must be more serious in order to justifythe termination of a more senior, longer-service employee ·who has madecontributions to the company.

In McKinley, the Court was considering the issue ofwhether and in what circumstances

dishonesty provides just cause. At page 190, the Court rejects the view of the British Columbia

Court ofAppealthat an employer would be entitled to dismiss an employee for a "single act of

dishonesty, however minor" and adopted instead an analytical framework which by its nature

would reject an approachthat would potentially result in an employee being "unduly punished by

the strict application of an unequivocal rule that equates all forms of dishonest behaviour with

just cause for dismissal. At the same time, it would properly emphasize that dishonesty going to

the core of the employment relationship carries the potential to warrantdismissal for just cause."

The Saskatchewan Court of Queen's Bench has recognized that McKinley has broader

application than merely in relation to alleged acts of dishonesty and includes cases where

misconduct is raised by the employer as cause for termination: RatzlofJv. Medstar Ventures

Inc., [2006] SJ. No. 218, and Bonneville v. Unisource Canada Inc. (2002),222 Sask. R. 107.

In cases where unacceptable or incompetent work performance is alleged as the basis to justify

termination, an employer will be required to establish that:

(1) it has established reasonable objective standards of performance;(2) the employee has failed to meet those standards;(3) the employee has had warning that he has failed to meet those standards and

that the employee's position with the employer will be in jeopardy ifhecontinues to fail to meet those standards; and

(4) reasonable time was afforded to correct the situation: Christie, England andCotter, Employment Law in Canada, 2d ed. (Markham, Ont.: ButterworthsCanada Ltd., 1993) at page 645.

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) Similarly, in situations where an employee is summarily dismissed for disobeying work policies

or rules, the employer must establish that:

(1) The rules were made known to the employees;(2) The rules must have been consistently enforced;(3) The order in question must have been clearly communicated to the

employee;(4) The order must be authorized in the sense of being within the scope of the

workers' duties under the employment contract;(5) The employee must have been made aware unequivocally that dismissal is

the penalty for disobedience;(6) The rules must be lawful and "reasonable" in content: White v. Enterprise Rent­

A-Car Ltd., [2005] A.J. No. 1055, wherein Scott J. quotes Christie, England andCotter, supra, at page 639.

In White, the evidence established a widespread history of policy breaches by employees and no

evidence was led on consistent enforcement of the Employer's Personnel Policy. In addition,

previous policy breaches of other employees and of a similar nature had only resulted in written

reprimands. Consequently, even though the Personnel Policy stated that violation of the

Employer's "policy and regulations may result in disciplinary action up to and including

termination for cause", the Employer failed in its effort to justify dismissal for cause for breach

of its policies or rules.

It is worthy to note that for a period oftime in the 1980's, a number ofjurisdictions were

utilizing the doctrine of "near cause" whereby upon determining an employer had failed to

establish misconduct sufficient to justify summary dismissal the misconduct would nevertheless

be relied upon by the Courts to reduce the award ofdamages. The doctrine of"near cause" was

clearly rejected by our Court ofAppeal in Jim Pattison Industries Ltd. v. Page (1984) 33 Sask.

R. 253 at 259 wherein Vancise I.A. stated:

There is no middle ground. The employer either has cause or he does not. Theemployee is either satisfactorily discharging the employment obligationsundertaking by him under the contract of employment or he is not. An employeewho repudiates the contract of employment is not entitled to "some" noticebecause he or she has been a "good" employee prior to such repudiation.

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While the doctrine of "near cause or moderated damages" was referred to by the Nova Scotia

Court ofAppeal in Blackburn v. Victory Credit Union Ltd., supra, the "near cause doctrine" was

rejected by the Supreme Court of Canada in setting aside a judgment of the Nova Scotia Court of

Appeal and remitting the matter to the Nova Scotia Supreme Court to determine the reasonable

notice to be given to the appellant: Dowling v. Halifax (City), [1998] 1 S.C.R 22.

There are also circumstances in which alleged misconduct on the part of an employee, for

example intoxication, failure of a drug/alcohol test or excessive absenteeism, may be indicia of

.an underlying addiction problem or disability for which the employer may have a duty of

accommodation. In circumstances where a complaint is made to the Human Rights Commission

and found to be valid and an employer would be found to have failed in its duty to accommodate

in terminating the employee's employment, remedies of reinstatement as well as compensation

could be ordered by the Tribunal: Section 31.3(b) of The Saskatchewan Human Rights Code,

RS.S. 1978, c.S-24-1, as amended.

The ability of an employer to summarily dismiss a probationary employee by virtue ofhis or her

probationary status is a question that has engendered conflicting results in the responses provided

by the Courts. At common law, the traditional rule allowed for the dismissal of a probationary

employee without notice if the performance of the employee during the probationary period

showed an inability to meet the job requirements: David Harris, Wrongful Dismissal, Rev. ed.

(Toronto, Ont.: Carswell, 2007) Vol I at page 3-213.

The conflicting or competing views had on the one hand, the abilityofthe employer to dismiss a

probationary employee without notice or reason during the period ofprobation, provided the

employer was satisfied that the probationary employee was unlikely to meet the requisite

standards ofthe employer: Markey v. Port Weller Dry Docks Ltd. (1974),4 O.R (2d) 12 at p. 26.

On the other hand, you have an onus on the employer in justifying the dismissal to "show the

Court that he acted fairly and with reasonable diligence in determining whether or not the

proposed employee is suitable in the job for which he is being tested": Ritchie v. Intercontinental

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) Packers Ltd. (1982), 14 Sask. R. 206 at 212. Noble J., adds that the probationary employee must

be given a reasonable opportunity to demonstrate his ability to meet the standards set by the

employer upon being hired which would include his ability to get along with others, potential

usefulness to the employer in the future, and other factors that the employer "deems essential to

the viable performance of the position".

The Saskatchewan Court of Queen's Bench continues to subscribe to this latter approach

whereby the employer is required to discharge the onus "that they acted fairly and with

reasonable diligence in determining whether or not he [the probationary employee] was suitable

for the job for which he was being tested": Lloyd v. Kelsey Students' Association Inc., [2001]

103 A.C.W.S. (3d) 545.

IX. IS THERE ROOM FOR PROGRESSIVE DISCIPLINE IN A NON-UNION

SETTING?

Progressive disciplinary responses in a unionized environment can range from verbal warnings

for first-time or less serious misconduct followed by written warnings, paid and unpaid

suspensions, last-chance agreements and termination. Extensions ofprobationary periods or

placing the employee back on probation may also be corrective actions utilized by the employer.

The provisions ofthe Collective Bargaining Agreement (CBA) together with the past practice of

the parties to the CBA will frequently impact on the nature of the disciplinary response which, of

course, would be subject to the grievance procedure.

The theory underlying progressive discipline is that it is intended to be corrective in nature

whereby an employee who is warned about his or her shortcomings, be they work performance­

related concerns or misconduct, and provided with a reasonable opportunity to improve will

usually respond positively not wanting to risk the loss ofhis or her employment. There are

reciprocal benefits to both the employee and the employer in adopting this approach; the

employee is provided with reasonable opportunities to improve and becomes aware of the

expectations of the employer. Insofar as benefits to the employer are concerned, and as noted in

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Employment Law in Canada, supra, at page 643, "the efficiency of the company increases

because, assuming that the worker does improve, the company will have avoided the costs of

recruiting and training a replacement." The learned authors, all ofwhom have acted as

arbitrators, go on to observe at page 644 that while courts do apply the "corrective theory" in

determining whether just cause exists in summary dismissal cases, this has occurred,

"remarkably, ... with virtually no explicit recognition that their decisions have drawn from

arbitral reasoning."

Certainly in relation to circumstances where employers are relying on cumulative misconduct as

the basis for justifying termination, the courts will require employers to have provided "clear and

effective warnings" to the employee in jeopardy of losing his or her employment: Henson v.

Champion Feed Services Ltd., [2005] A.J. No. 323 at para. 51. Relying on the unanimous

decision of the Alberta Court of Appeal in Lowery v. Calgary (City) (2002), 312 A.R. 393

Greckol J. adopted the test stated by Berger J.A at para. 3 that an employer must meet where

cumulative cause for dismissal for incompetence is alleged:

1. Theernployee was given express and clear warnings about his performance.2; The employee was given a reasonable opportunity to improve his performance

after the warning was issued.3. Notwithstanding the foregoing, the employee failed to improve his performance.4. The cumulative failings 'would prejudice the proper conduct ofthe employer's

business'.

Additionally, in referring to the Supreme Court of Canada decision in Cabiakman v. Industrial

Alliance Life Insurance Co., [2004] 3 S.C.R. 195 at para. 64, Greckol J. first notes that the Court

"recently affirmed that it is appropriate for courts to look to the decisions of labour arbitrators for

guidance on the application of principles within their familiar terrain" and then proceeds to

review arbitral awards which deal with progressive discipline.

In Henson, a shift foreman had been terminated for an alleged "culminating incident" following

on having previously received five verbal warningsl"counselling sessions" and one written

warning. He had worked for the employer for seven years and had been promoted to shift

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) foreman in addition to receiving pay increases and bonuses. The employer alleged that he had

intentionally attempted to conceal a mistake of improperly mixing a batch of feed for a customer.

The trial judge had found that Henson's original mistake constituted just cause for his

termination. On appeal, the Court found that while his employment history was not "enviable",

the employer had adopted a "non-punitive, counselling approach to dealing with employee

deficiencies". There was no clear message with respect to potential consequences if his work

record failed to improve and not invoking a system of progressive discipline to address the

employer's production concerns proved fatal to the employer's case.

In Chester v. Pepsi-Cola Canada Ltd., [2005] S.J. No. 141, Maher J. found that Pepsi did not

have just cause to terminate the employment of Chester on the basis of alleged substandard

performance in failing to rotate and remove expired product from the stores thathe served. Pepsi

utilized a progressive suspension program which was set out in the employee handbook. Prior to

his termination on October 30,2002, Chester had received three warnings in 2000, one ofwhich

required that he significantly improve his performance or he would receive further discipline up

to and including termination ofhis employment. He received no warnings in 2001 but

commencing in January 2002, he received a written warning, a one day suspension without pay,

averbal warning, a five day suspension without pay in July followed by his termination in

October. At the time of the termination of his employment, Chester had worked for Pepsi for 19

years and eight months, was 45 years of age and had a Grade 12 education. Maher J. found that

the standard that the employer expected Chester to achieve was unrealistic and likely

unattainable by his co-workers. No comment was made with respect prior unpaid suspensions

that were imposed.

In Caudle v. Louisville Sales & Services Inc., [1999] S.J. No 873, Laing J. allowed an

application for summary judgment in a wrongful dismissal matter finding at para. io that "the

alleged misconduct of the plaintiffwould have justified him being warned to not continue such

conduct, but it falls far short of conduct justifying cause for termination." The alleged

misconduct was described by Laing J. as "griping" but had the employer provided one or more

warnings to the employee about his "poor attitude" and the "griping" continued, then the

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misconduct would have changed from one of "poor attitude" to "disobedience or

insubordination".

In following a course of progressive discipline, care must be given that the employee will not see

the imposition of the discipline/corrective action as a fundamental breach of the employment

relationship in substantially altering an essential term sufficient to support a claim of

constructive dismissal. Circumstances in which this could possibly arise include taking away

someone's authority and decision-making power and placing them on a specified probationary

period after having worked for the employer in a senior capacity for some years or suspending

the employee without pay.

The Saskatchewan Court of Queen's Bench had occasion to deal with these circumstances in

Henderson v. Saan Stores Ltd., [2005] S.J. No. 49. Except for a five-year period early on in his

career, Henderson had worked for the employer in a managerial capacity since 1976 with

increasing managerial responsibility. In 1999, the employer introduced a new customer-service

program and the employer alleged that Henderson had difficulty in adjusting to the new program

which resulted in his being subject to the progressive discipline/correction action program of the

employer. Henderson received verbal and written reprimands. In 2001, he was suspended for

one week with pay when he failed to follow the employer's store hour policy on Remembrance

Day and the day following. Following on this suspension, the employee was advised that he

would be suspended for a further five days, this time without pay, and placed on probation for

ninety days. The employee refused to sign the letter which set out the basis for taking this action

and tendered his resignation instead, ultimately taking the position that he had been

constructively dismissed. Malone J. found that in the circumstances the imposition of a

probation period could not be said to have substantially altered an essential term ofHenderson's

contractof employment and it was a specified next step in the Progressive Discipline program,

following on a written warning.

The imposition of the five day suspension without pay was viewed as an entirely different

matter, however, even though the suspension was of relatively short duration. First, Malone J.

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The Supreme Court of Canada's decision in Cabiakman v. Industrial Alliance Life Insurance

Co., supra, provides an interesting examination of the issue of the imposition of an unpaid

suspension in a non-unionized environment recognizing that the discussion primarily focuses on

the civil contract. In an effort to further limit the effect of its decision, the Court is careful to

note at para. 33 "that the only question raised by this appeal relates to the unilateral power to

suspend an employee against whom criminal charges have been laid, for purely administrative

reasons connected with the interests of the business". The Appellant was charged with attempted

extortion unrelated to his work and the Respondent Employer suspended him without pay

pending the outcome of the criminal charges. The Appellant was acquitted on the criminal

charges and reinstated into his position soon after. Nevertheless, the period of the two year

suspension resulted in a significant cost to the employee and the court ultimately determined that

the employer was required to pay the employee for his income loss during this period of time.

At para. 72, the Court opines that "an employee on whom an administrative suspension without

pay -- to which the employee has not consented - is imposed might, as a rule, properly regard

that measure as a constructive dismissa1."

Arguably, the phrase "to which the employee has not consented" is the key to successfully or

unsuccessfully imposing an unpaid suspension on an employee in a non-union environment. If

the employee accepts the imposed discipline and does not treat it as a substantial altering of a

fundamental term of the employment contract - that is, as a constructive dismissal, then there

would appear to be no difficulty. If, on the other hand, the employee does not agree with the

imposed discipline of an unpaid suspension and treats it as a constructive dismissal, the

employee wi11likely be successful in making this argument.

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X. CONCLUSION

While the employment relationship is contractual in nature, a modem-day approach to

employment law recognizes the importance placed on one's employment in today's society as a

measure or reflection of an individual's identity. This recognition has influenced changes to the

manner in which this relationship can be brought to an end. In addition to legislative restrictions

which will be imposed on the relationship, legal restrictions at common law will guide the

manner in which both the employee and the employer can end the relationship regardless of

whether it occurs through resignation, dismissal, summary dismissal or constructive dismissal.

When investigating and documenting misconduct or poor performance, it is important to

maintain good records of disciplinary meetings and disciplinary letters ofwarning as the courts

will closely scrutinize the seriousness ofpast offences. It is also important to ensure procedural

fairness in all investigations and dismissals to avoid extensions ofnotice periods.

A failure on the part of an employer to respond in a timely way or at all to incidents of

misconduct or poor performance can result in an award of damages for unjust dismissal if the

Court finds the employer has condoned the behaviour it now seeks to rely upon to justify a

dismissal.

Whether just cause exists is a question that needs to be determined on the particular facts and

circumstances of each case. Courts will adopt an analytical framework in making this inquiry to

ultimately determine whether the conduct complained of is sufficiently egregious to justify the

termination as a result of the employment relationship being irreparably harmed.

Concepts such as progressive discipline that have long been utilized in the unionized labour

environment do have a place in the non-union sector and are informing the manner in which an

employer in the non-union sector can deal with its employees. Except in cases of serious

misconduct, habitual neglect of duty, wilful disobedience in a matterof substance, incompetence,

conduct incompatible with one's duties, or prejudicial to the employer's business, courts will

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rarely allow an employer to summarily dismiss its employees without clear warning or adherence

to some type ofprogram ofprogressive discipline. At the same time, employers who adhere to

progressive discipline programs should ensure that they set out in their policies all of the various

steps the employer will utilize in addressing misconduct or performance problems with an

employee and provide employees with clear and unequivocal warnings, setting out the

employer's expectations and the consequences for failing to meet the expectations in a

reasonable timeframe.

Following these steps should help to avoid some of the pitfalls that will inevitably find their way

into the employment relationship.

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