Termination Entitlements in Canada: Factors Courts Consider
Termination can leave individuals feeling uneasy and financially vulnerable. When it comes to determining termination entitlements, courts carefully assess various factors known as the Bardal factors. These factors significantly influence the determination of the common law reasonable notice period pay owed to terminated employees. In this article, we will explain the Bardal factors, their application, and how a lawyer can assist in navigating termination entitlements and the considerations courts take into account.
Understanding the Bardal Factors and Termination Entitlements
Termination without cause can have significant implications for both employees and employers. The concept of notice period pay, also referred to as reasonable notice, comes into play during termination cases. The Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC) case established the framework for assessing termination entitlements in Ontario.
The Bardal Factors Explained
The Bardal factors, which are taken into consideration by the courts after the employee is fired without cause, include:
The nature and character of the employment: This factor examines the level of skill, responsibilities, and specialized expertise required
for the job. Highly skilled executives or employees with unique roles may have the right to longer notice periods and increased notice period pay.
Length of service: The length of time an employee has worked for the business is an important consideration. Generally, longer tenures correlate with greater entitlements, as employees who have dedicated many years to an employer may face more challenges in finding new employment.
Age of the employee: Age plays a significant role in termination entitlements. Courts recognize that older employees may experience more difficulties in securing similar employment opportunities due to potential age-related barriers. Consequently, they may be entitled to higher compensation during the notice period.
Likelihood of securing similar employment: The employee's experience, training, qualifications, and the probability of finding similar employment after termination are assessed. Highly specialized skills in low demand may result in higher compensation entitlements compared to less specialized qualifications in high demand.
The courts also consider other relevant factors when determining termination entitlements
The Role of a Lawyer in Termination Cases
Seeking legal advice is essential for both employees and employers involved in termination disputes. A lawyer can provide valuable guidance and support throughout the process:
From an employee's perspective, an employment lawyer can help employees understand their rights, assess the strength of their case, and navigate the complex legal landscape. Employment lawyers can advocate for fair compensation, negotiate on behalf of the employee, and safeguard their rights throughout the termination process.
From an employer's perspective, employers can benefit from consulting an experienced lawyer to ensure compliance with employment laws when structuring termination packages. Legal guidance is crucial to minimize potential liabilities and effectively respond to demand letters or statements of claim from dismissed employees.
Conclusion
Courts determine termination entitlements based on a range of factors referred to as the Bardal factors. Notice period pay and reasonable notice are crucial elements in assessing termination cases. By understanding the Bardal factors and seeking the assistance of a knowledgeable lawyer, both employees and employers can navigate the complexities of termination disputes. Legal advice is essential to ensure fair compensation, protect rights, and achieve the best possible outcome for all parties involved.
