In Ontario, employees are presumptively entitled to receive reasonable advance notice of their dismissal from employment, or payment in lieu thereof. To assess what will be “reasonable” in any given circumstance, the courts are guided by a seminal court case from 1960 – Bardal v. Globe & Mail Ltd. (“Bardal”). In Bardal, Chief Justice McRuer noted that:
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.
An employer’s failure to provide reasonable advance notice of dismissal will allow an employee to assert that he/she was wrongfully dismissed (i.e. the employer breached an implied term of their agreement that reasonable notice would be provided).
Length of employment – Skowron v. ABC Technologies Inc. (“ABC Technologies”)
A recent decision of the Ontario Superior Court of Justice, ABC Technologies, offers helpful guidance with respect to how courts should assess reasonable notice in accordance with Bardal, where the employee in question worked on-and-off for the same employer over a prolonged period of time. An employee’s length of service is an important factor in the court’s assessment of the applicable reasonable notice period. More often that not, it is easy to calculate: an employee is hired, works for a period of time, and is then dismissed.
In ABC Technologies, however, the plaintiff was employed with the defendant employer from 1994 to 2000 and then resigned to pursue a career as a consultant. Eleven months later, the plaintiff then rejoined ABC Technologies as a contractor (during 2001-2002), before resuming his employment in 2003, and remaining with the company until his dismissal in 2020. At the time of his dismissal, the plaintiff was 61 years old and working as a Technical Manager.
Following his dismissal, the plaintiff brought a court action seeking damages equal to 24 months’ reasonable notice for breach of contract and wrongful dismissal. In advancing this claim, the plaintiff asserted that the court should view him as an employee with 26 years’ service (i.e. 1994 to 2020). The defendant employer, however, argued that the plaintiff’s service had been broken, and that he had only been employed with it for 17 years prior to dismissal (i.e. 2003-2020).
In addressing this dispute, and determining how best to consider the plaintiff’s length of employment, Justice Myers made the following observations:
- The defendant employer was both technically and legally correct that the plaintiff’s career consisted of “a six year job, then a three year consultancy, and then he became an employee of the defendant for the past 17 years;”
- While the defendant employer was “technically and legally correct”, however, the “strict legalities of the situation do not address the issue;” and
- The court will take a “holistic approach to review all the relevant circumstances to try to arrive at an appropriate assessment of the amount of time reasonably required for the plaintiff to obtain new employment.”
Justice Myers then proceeded to frame the issue in a “real world” perspective, having regard for how a reasonable prospective employer would view the plaintiff’s employment experience, noting that the plaintiff’s “entire working experience is with the defendant with a break when he tried to be a consultant.”
Justice Myers went on to note that, while the courts have discretion to overlook a break in service for the purpose of assessing reasonable notice, his approach would not be to “overlook” but rather to apply a contextual approach, having regard for the circumstances of the specific case:
I accept that there was a legal break in Mr. Skowron’s employment with the defendant. I do not think that finding that the plaintiff has been an employee of the defendant for just 17 years fairly encapsulates the length of employment from the perspective of a sixty year old man who is now unemployed and is looking for a new job however. I do not think it matters if I find the length of service to be specifically 22, 24, or 26 years. The Bardal process is not mathematically precise. Nor is it intended to be so.
Ultimately, having regard for the Bardal factors, the court ordered a 24-month notice period.
Takeaways for employers and employees
The ABC Technologies decision offers practical guidance for how the courts may consider periods of broken service within a global tenure with one employer. For employers, it is an important reminder to be aware that just because a dismissed employee may have left and then returned to work within your organization, does not mean the court will rigidly ignore, or discount, this prior service. Rather, the court will adopt a contextual approach and view the situation with an eye to achieving a fair outcome.
There is an inherent degree of uncertainty for employers in responding to claims for reasonable notice. To remove this uncertainty, and minimize risk of unintended lability, Ontario employers should consider engaging staff on written employment agreements which make provision for the parties’ entitlements in the event of a subsequent dismissal.
Employees, on the other hand, should be aware that if they have worked on-and-off for an employer, their prior service may be a relevant factor assessed by the court in determining what is reasonable notice in the circumstances.
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