This is a 4-part article series that points out crucial aspects of identifying when an employee has been wrongfully dismissed. Our goal is to teach you to recognize when the termination of your employment is unjust and assist you in fully understanding your employee rights.
In the last blog post in this series, we discussed how to tell when you are entitled to compensation when you are fired from your job.
One form of compensation that employees may be entitled to upon termination without cause are reasonable notice damages.
Am I Entitled to Reasonable Notice?
In employment law, reasonable notice is a “rebuttable presumption.” This means that you are presumed as being entitled to reasonable notice, if there is no suggestion to the contrary in your employment contract.
There are two common scenarios where an employee is definitely entitled to reasonable notice:
- Where there is no written employment contract; or
- Where there is a written employment contract, but where the contract does not contain a termination clause or any other express language suggesting that an employee is entitled to some form of compensation for termination in lieu of notice.
If an employee signs an employment contract that purportedly entitles them to less compensation than the statutory minimum guaranteed under the Employment Standards Act, then an employee is still entitled to reasonable notice.
If an employee signs a contract stating that they are owed only the statutory minimum upon being fired without cause, then they are likely not entitled to reasonable notice, as this rebuts the presumption.
Similarly, if an employee signs a contract stating that they are owed more than the statutory minimum (i.e. two weeks’ notice for every year worked), this also rebuts the presumption, and the employee is likely not entitled to reasonable notice (but rather the amount stated in their contract).
However, if the employee can prove in court that the employer breached a fundamental term of their employment contract, the court may consider that contract void. This would mean that the employee is once again presumably entitled to reasonable notice.
How is Reasonable Notice Calculated?
There’s no formula for calculating what an employee is entitled to for reasonable notice. Rather, the courts weigh a number of factors together to determine the amount of notice that an employee is entitled to in each particular case.
The case law on this matter goes back to an Ontario Supreme Court case from 1960 called Bardal v The Globe & Mail Ltd:
“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” (para 145).
This approach has been endorsed by both the Supreme Court of British Columbia (Ansari v BC Hydro & Power Auth,  BCJ No 3005 (QL)) and in the Supreme Court of Canada (Wallace v United Grain Growers Ltd,  3 SCR 701).
The Bardal factors
The Bardal factors reflect a standard approach that the courts use in determining the length of reasonable notice.
These 4 factors include:
1. Character of Employment
The “character of employment” refers to the employee’s role in the company i.e. a managerial role versus a non-managerial role. It can also refer to the employee’s skill set i.e. a general labourer versus a skilled tradesman or professional. Generally, the more senior the role, the more notice an employee is entitled to.
2. Length of Service
The length of service of the employee refers to just that. Generally speaking, longer service employees are entitled to longer notice periods.
The age of the employee factors in as employment opportunities may reduce as an employee ages. Longer notice periods have been justified for older, long term employees.
4. Availability of Similar Employment
The availability of similar employment, having regard to the experience, training and qualifications of the employee is also important.
Generally speaking, the more difficult it is likely to be for the dismissed employee to find new employment, the longer the notice period will be.
It is important to note that the Bardal factors are only a guide, and courts have consistently held that they are a non-exhaustive list of factors.
Courts are constantly encountering new realities that may increase or reduce the reasonable notice period of a particular employee.
For example, in Ostrow v Abacus Management Corporation Mergers and Acquisitions (2014 BCSC 938), the BC Supreme Court held that “a non-competition clause in the employment contract is a factor which may increase the length of the reasonable notice period” (para 79).
While no courts have openly stated it, there is a consistency amongst courts in BC that, upon termination without cause, managerial employees receive 1 month of notice for each year of service to their employer.
Determining the range of reasonable notice for a non-managerial employee is trickier, however; this generally involves looking to cases of employees doing similar work, sharing similar circumstances.
The BC Court of Appeal in Saalfeld v Absolute Software Corporation (2009 BCCA 18) emphasized that, in determining the reasonable notice period of a dismissed employee, it is important to determine the “range of reasonableness from recent British Columbia precedents” (para 14).
The court in Saalfeld further stated that looking at comparable cases and “adjusting for differences permits a reasoned objective analysis, not only by a court, but by all who must determine reasonable notice in particular circumstances” (para 14).
As we have learned, calculating reasonable notice is not a straightforward exercise.
Figuring out whether you have a claim to reasonable notice can also be tricky, and largely depends on whether you have a written employment contract.
If you have been fired from your job for no cause and feel you are entitled to compensation, speak to one of our employment lawyers to determine whether you have a claim to reasonable notice. Call (778) 565-4700 or simply fill out our contact form.
The preceding content is for informational purposes only and does not constitute legal or professional advice. To obtain such advice, please contact our offices directly.
Read the rest of our Wrongful Dismissal Series: