Have you ever heard of the “Bardal factors” in employment law? No? Trust us, you are not alone. Very few members of the public know what the Bardal factors are in employment law nor do they know how they are applied or why they are so important. Let us teach you a little bit about this important employment law concept and why it could be the key factor in assessing how much compensation you could be entitled if you have been fired from your job.

Reasonable Notice of Termination

Before we dive into the legal concept of the “Bardal factors,” we need to break down what exactly is termination notice under statute or under the common law. When an employee has been wrongfully dismissed (also called being “fired without cause” or “let go” form a job), the employer must provide the employee with a notice of the termination, termination pay in lieu of that notice or a combination of both. Termination pay is simply monetary compensation paid to the dismissed employee in lieu of notice of the termination. Sometimes the employer will provide no notice to the employee or less notice than what the employee should have received from the employer.

Notice of Termination: Common Law vs. Statute

So now you know that when an employee is dismissed, the employee is owed notice or pay in lieu of that notice. Reasonable notice at common law is routinely confused with an employee’s minimum notice entitlements upon dismissal set out by statute. In Ontario, those minimum statutory entitlements are set out in Ontario’s Employment Standards Act, 2000 (“ESA”). The ESA, unlike the common law, does not contemplate what notice is “reasonable.” Instead, it follows a rigid formula in relation to the employee’s entitlement in the event of a dismissal. Thus, Bardal factors are not to be conflated with what is owed to a dismissed employee under statute such as the ESA. Bardal factors are used in the assessment of reasonable notice under the common law.

The “common law” is simply legal rules that are derived from judge-made decisions in courts. The common law is developed by way of precedent, which means that what a judge decides in one case in a higher appellate court will now apply to all new cases before the courts that have materially similar facts and legal issues to the first case.

The common law notice, therefore, represents broadly acquired rules derived from judge-made decisions determining how long a reasonable notice period is appropriate for a wrongfully dismissed employee. The bulk of these decisions (which are incredibly numerous) will set out certain “rules” or factors that can be applied to individual cases for a judge to figure out how much notice is owed to a dismissed employee. An employee may be entitled to a significantly longer notice period under the common law than under statute.  For instance, depending on the individual nature of the case, a wrongfully dismissed employee may be entitled to over 24 months of common law notice.

The Case of Bardal v. Globe & Mail Ltd.

The leading decision setting out the length of reasonable notice is the case of Bardal v. Globe & Mail Ltd, 1960 Canlii 294. This is where we get the name “Bardal” from. The judge in that decision set out that the reasonableness of any notice period must be determined upon each individual case using a set of factors.

These factors are:

1. The character of the employee’s employment. This means what type of job or position the employee had at the time of his or her dismissal.
2. The length of the employee’s service to the employer. This means how long the employee worked for the employer at their job.
3. The employee’s age at dismissal. This one is self-explanatory but it is an important factor in determining if the employee is going to need a lengthier notice period to get a job especially if they are older.
4. The availability of similar employment. This means that the court will look at how many other jobs of similar type are available accounting for the employee’s education and skillset are available.

The above factors are referred to as the “Bardal” factors and have been used by every level of court to assist in determining an appropriate common law notice period for a wrongfully dismissed employee.

The general rule of thumb is that an employee is entitled to receive a greater notice period the longer they have been working with the employer and the older that employee is. Ontario courts will typically award an employee with pay in lieu of reasonable notice between as low as two weeks of notice and up to 24 months’ common law notice depending on the various factors we have mentioned above. In exceptional circumstances, Ontario courts will even award notice periods to dismissed employees of above 24 months.

For more information about common law notice, please read:

• Termination vs. Severance Pay?
• What You Need to Know about Common Law Notice
• What You Should Know About Wrongful Dismissal in Ontario

Some Complicating Factors

While the Bardal factors are often the starting point in accessing common law notice, they are not the only factors that an employment lawyer will need to review to determine the totality of the compensation owing.

One of the most common complicating factors upon dismissal is the presence of discrimination, harassment or bullying. An employee who has faced discrimination, bullying or harassment may claim from the employer full termination and / or severance pay in addition to other possible damages stemming from the harassment regardless of whether the employee quit or resigned. Another complicating factor is the presence of an employment agreement that includes a termination clause which may limit (or purport to limit) an employee’s rights at the time of dismissal.

How Zeilikman Law can Help

You should approach an employment lawyer to get your case reviewed if you have been dismissed. An employment lawyer can look at your individual case and determine what termination or severance pay you are owed. There may be other forms of compensation as well. You can contact Zeilikman Law via telephone at (905) 417-2227 or here on our website to schedule your own confidential consultation.