Bardal Factors
April 28, 2017 Stringer LLP Conferences, Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Source Deductions and Reporting, Union Relations, Wages and Compensation
Many employers include termination clauses in employment contracts to limit their liability when dismissing employees. When employers draft generous termination provisions providing for more than statutory minimums, they must follow through on that generosity when terminating employees. Failing to do so could leave employers exposed to full liability under the common law.
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March 15, 2017 Simon Heath, BA, MIR, LLB, Heath Law Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Source Deductions and Reporting, Wages and Compensation
Given the elimination of mandatory retirement years ago, employees are working for longer periods of time and well into their 60s and some into their 70s. Age has always been one of the key Bardal factors, in addition to title, length of service and compensation, that courts use to determine an appropriate common law notice period. In the recent case of Ozorio v. Canadian Hearing Society, 2016 ONSC 5440, Justice O’Marra confirmed that an employee’s age remains a significant factor in determining a common law notice period.
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February 11, 2016 Yosie Saint-Cyr, LL.B. Managing Editor Employee Relations, Employment/Labour Standards, Health and Safety, HR Policies and Procedures, Human Resources, Human Rights, Payroll, Pensions and Benefits, Wages and Compensation
Three popular articles this week on HRinfodesk deal with employer vicarious liability for employee misconduct; reasonable notice and the failure to mitigate; and, the legal definition of “immediate family” for the purpose of bereavement leave.
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January 29, 2016 Yosie Saint-Cyr, LL.B. Managing Editor Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Union Relations, Wages and Compensation
Three popular articles this week on HRinfodesk deal with an independent medical examination; wilful misconduct; and, 27 months of common law reasonable notice.
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January 12, 2016 Doug MacLeod, MacLeod Law Firm Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation
Even though Ontario judges have been using the same test for 55 years to determine how much notice of termination an employee is entitled to receive, employees and employers continue to disagree on an appropriate notice period in individual cases.
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January 11, 2016 Alison J. Bird Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation
Employee salaries and benefits can be some of the greatest costs borne by a business. As a result, when a company faces financial hardship, they will often terminate positions to reduce their costs. However, many employers may not realize that the obligation to provide reasonable notice of termination could negate any short-term cost savings they hoped to realize.
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December 5, 2014 Rudner Law, Employment / HR Law & Mediation Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Recruiting and Hiring, Union Relations
Small to midsize employers, many HR professionals, and many lawyers proceed based upon completely inaccurate understandings of how employment law works. While there are many examples of this, there are three that I see regularly in my practice: the myth that the severance entitlement in Canada is one month per year, regardless of other factors […]
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September 8, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Recruiting and Hiring, Wages and Compensation
While many employers may be aware of the difficulties in enforcing non-competition clauses, they may not be aware of another risk associated with such clauses: their potential to increase the reasonable notice period.
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August 22, 2014 Christina Catenacci Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Union Relations, Wages and Compensation
The Supreme Court of British Columbia confirmed that following the termination of a senior employee who had over 20 years of service with the employer, the employee was entitled to a reasonable notice period of 17 months considering the Bardal factors. However, due to the employee’s extremely passive attitude towards finding new employment, the notice period was reduced to 14 months. In a nutshell, the employee just did not do enough to seek alternate employment.
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August 6, 2014 Employer Advisor, McCarthy Tétrault LLP Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation
Determining the actual notice period an employee is entitled to upon termination is often a frustrating exercise for employers. This is especially true of the more recent case-law which has tended to place more emphasis on certain factors (age and tenure) at the expense of other factors (nature of position and compensation). There have been widely divergent awards in recent years. This undermines the ability of employers to plan, with some certainty, for large scale restructurings and the required notice/severance to provide staff.
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July 3, 2014 Yosie Saint-Cyr, LL.B. Managing Editor Employee Relations, Employment/Labour Standards, Health and Safety, HR Analytics, HR Policies and Procedures, HRMS, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Wages and Compensation
Three popular articles this week on HRinfodesk deal with Statistics Canada 2013 study on hours worked and labour productivity; Bardal factors; and, the award of punitive damages for failure to investigate workplace harassment.
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June 6, 2014 Rudner Law, Employment / HR Law & Mediation Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation
The impact of the employer’s financial condition at the time of termination on the notice period has been the subject of some debate. In 1983, the Ontario Court of Appeal held, in Bohemier v. Storwal International Inc., that the financial circumstances of the employer are a factor that can be considered in the assessment of the notice period. Some courts have explicitly rejected the notion, however…
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May 12, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation
Last October, I wrote a post cautioning employers to beware of using the one month per year of service “rule of thumb”. A recent case from the Ontario Superior Court of Justice has again affirmed that, depending on the circumstances, courts are willing to award short service employees significantly more than one month per year of service.
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August 9, 2013 Rudner Law, Employment / HR Law & Mediation Employee Relations, Employment/Labour Standards, HR Policies and Procedures, HRMS, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Union Relations
Assessing how much notice of termination a particular employee is entitled to is a challenge most employers would like to avoid. As those of you who deal with the issue on a regular basis know, employment standards legislation sets out the minimum amount of notice, but it will almost never be sufficient unless the employee has an enforceable contract that limits them to the statutory amounts. In most cases, the common law will require that an employer provide “reasonable notice”, and though there are many myths, there are no easy ways to determine what is reasonable.
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April 9, 2012 Matt Lalande, Lalande & Company Lawyers Employee Relations, Employment/Labour Standards, Human Resources, Payroll, Wages and Compensation
We know that there is no precise method to determine the common-law period of reasonable notice when terminating employees. What has evolved and has been the most quoted case to help with this is the infamous Bardal vs. Globe and Mail. This case tells us that reasonable notice must be decided with reference to each specific case, considering the character of employment, 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.
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