When it comes to employment law in Canada, the Bardal Factors play a significant role in determining the appropriate notice period for termination without cause. If you are an employer or an employee, understanding these factors can help you navigate the complex landscape of employment termination and common law.

In this article, we will break down what the Bardal Factors are, why they are important, and how they are applied in real-world scenarios.

Understanding the Bardal Factors

The Bardal Factors originate from a landmark case in Canadian employment law known as Bardal v. Globe & Mail Ltd. (1960). This case established that there is no fixed formula for determining the notice period an employee should receive when terminated without cause. Instead, several factors must be considered to decide what is “reasonable” notice under common law.

Key Bardal Factors

The Bardal Factors include:

1. Length of Service: How long the employee has worked for the company.
2. Age of the Employee: Older employees may find it more difficult to secure new employment.
3. Position and Responsibilities: The employee’s role and the level of responsibility they held.
4. Availability of Similar Employment: The ease or difficulty of finding a similar position in the job market.

These factors are not exhaustive but are the primary considerations used by courts to determine reasonable notice.

Why Are the Bardal Factors Important?

The Bardal Factors provide a structured approach to fairly assess what an employee is entitled to when their employment is terminated without cause. This is crucial for both employers and employees for several reasons:

For Employers

Understanding the Bardal Factors helps employers make informed decisions about severance packages and avoid potential legal disputes. By considering these factors, employers can offer fair compensation, thereby reducing the risk of wrongful dismissal claims.

For Employees

Employees benefit from knowing the Bardal Factors as they can better understand their rights and what they may be entitled to upon termination. This knowledge empowers employees to negotiate fair severance packages or seek legal advice if necessary.

How Are the Bardal Factors Applied?

When applying the Bardal Factors, courts look at each case individually. Here’s a closer look at how each factor is typically assessed:

Length of Service

The longer an employee has been with a company, the longer the notice period they are likely entitled to. For example, an employee who has worked for 20 years may receive a longer notice period compared to someone who has been with the company for only 2 years.

Age of the Employee

Older employees often face more challenges when seeking new employment. As a result, courts may grant a longer notice period to older employees to account for the additional time they may need to find a new job.

Position and Responsibilities

The nature of the employee’s role also plays a significant part. Senior executives or specialized professionals who held high-responsibility positions may receive longer notice periods compared to entry-level employees. This is because finding a comparable position may take more time and effort.

Availability of Similar Employment

We also consider the job market conditions and the availability of similar roles. If an employee works in a niche industry where jobs are scarce, they may qualify for a longer notice period. Conversely, if the job market is thriving and similar positions are readily available, the notice period may be shorter.

Real-World Examples

To better understand how the Bardal Factors are applied, let’s look at a couple of real-world examples:

Example 1: Long-Term Employee

John has worked as a senior manager at a manufacturing company for 25 years. He is 55 years old and holds a specialized role. When the company decides to terminate his employment without cause, they must consider the Bardal Factors. Given John’s long service, age, and specialized role, he may be entitled to a significant notice period, possibly up to 24 months.

Example 2: Short-Term Employee

Sarah is a 30-year-old marketing coordinator who has been with her company for 2 years. Her role is relatively common, and the job market is currently strong. If Sarah is terminated without cause, the Bardal Factors suggest she would likely receive a shorter notice period, perhaps around 2-3 months.

Legal Considerations and Common Law

In addition to the Bardal Factors, it is essential to understand the legal framework surrounding termination without cause in Canada. Under common law, employers are required to provide “reasonable notice” or pay in lieu of notice when terminating an employee without cause. The Bardal Factors help determine what constitutes reasonable notice.

Statutory Minimums vs. Common Law

It’s important to note that statutory minimum notice periods set by provincial employment standards acts are different from common law notice periods. Statutory minimums are the least amount of notice an employer must provide, but common law often dictates a longer notice period based on the Bardal Factors.

For example, under Ontario’s Employment Standards Act, employers must provide an employee with 10 years of service 8 weeks of notice. However, under common law, the same employee may qualify for a much longer notice period depending on the Bardal Factors.

Conclusion

Understanding the Bardal Factors is crucial for both employers and employees navigating the complexities of termination without cause. These factors offer a fair and balanced approach to determining reasonable notice, ensuring that employers treat employees justly while making informed decisions.

Whether you are an employer planning a termination or an employee facing job loss, knowing the Bardal Factors can help you understand your rights and obligations under common law. By applying these factors, you can better negotiate severance packages and avoid potential legal disputes.

Remember, each case is unique. Contact us below. We offer free consultations.