Understanding What Employment Lawyers Mean By The Bardal Factors
If you have just been terminated from your employment, once the initial shock has worn off, your likely first step will be to search the internet for an employment lawyer in your area to help you understand your termination and to determine if the termination/severance package is appropriate for your employment history and circumstance.
During this initial internet search you will undoubtedly see reference to Bardal, Bardal Factors, Bardal Criteria, and the Bardal decision. But just what is Bardal?
Simply stated, Bardal is an important 1960 employment law decision of the Ontario High Court (as it was called then), Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.), that is still relied upon today.
What Impact Does the Bardal Decision Have?
Although less than 8 pages long, the Bardal decision is one of the most important employment law cases in Canada, and accordingly, it is often cited and referred to by employment law lawyers and judges throughout Canada. The general principle of Bardal is as follows:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.
What Does this Mean for Terminated Employees?
While the Bardal factors have been augmented since 1960, at essence they remain the guiding principles to determining reasonable notice requirements. When an employee is terminated from their employment, the courts, and accordingly employment law lawyers in attempting to settle a case without having to go to court, look at a number of specific factors to estimate and determine what notice is reasonable, including, but not limited to:
- is there an Employment Agreement in place that dictates the notice requirement?
- the type or characterization of employment, for example, was it a contract position or permanent full time position?
- the age of the employee at the time of the termination;
- the length of service that the employee provided to the employer;
- previous employment history and luring, if applicable;
- the experience and skill set of the employee at the time of the termination and whether this experience and skill set is transferable to reasonable alternative employment;
- the employee’s salary at the time of the termination;
- the current job market and the availability of reasonable alternative employment;
- whether the employee was in a position of management or upper management;
- does the employee have a health concern or disability that may impair securing alternative employment?
- the manner of the termination; and
- is this a single termination or a mass lay-off of 50+ employees?
While not an exhaustive list of factors, the Bardal Factors are fundamental to determining reasonable notice for a particular employee beyond the minimum notice requirements under the Employment Standards Act (B.C.).
Employment law is rife with pitfalls that can easily and strategically be avoided with the assistance of an Employment and Human Resources lawyer. Navigating the mines of employment law can generally avoid costly mistakes, including expensive litigation.
Scott Chambers is an employment and Human Resources Lawyer practicing at Doak Shirreff LLP in Kelowna, British Columbia. Scott advises businesses and Human Resources professionals on all employment related matters, including termination and determination of reasonable notice.