What are the Bardal Factors?
The four factors (age, length of service, character of employment, availability of similar employment) are commonly referred to as the “Bardal factors” and are how courts primarily determine a reasonable notice period for terminated employees.
Let’s take a closer look.
Age
Unfortunately, age discrimination is alive and well in the workforce. Aging employees will have a harder time securing employment if they find themselves in the market. Companies may be reluctant to invest in training someone who may retire soon and long-service employees tend to have achieved a higher level of compensation.
Length of service
Many people believe that there is a rule of thumb that awards a dismissed employee, as an example, one month of notice for every year of service. This isn’t actually true. Courts award longer notice periods to long-standing employees (20+ years) as their chances of mitigation are lower as well as to short-service employees because no one is finding a new job in four weeks in the GTA right now.
Character of employment
Highly specialized employees may be entitled to longer notice periods since there are relatively few employment opportunities for their specific skill set. This also accounts for employees that have on-the-job training in place of certificates and degrees that will have their resumes filtered out in the application process (particularly, online).
Availability of similar employment
We talk about mitigation all. the. time. The more difficult it is to find new employment, the longer the notice should be. Similar employment not only refers to the function of the role, but the industry, proximity to one’s home, compensation, and benefits.
When assessing the notice period in your termination, consider these factors and when in doubt, get excellent advice.
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Chris Robertson, B.A., LL.B.
Chris Robertson, B.A., LL.B.