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Is position or 'character of employment' still relevant?

While it has been one of the core factors in calculating notice periods, recent decisions suggest it may no longer be significant

By Stuart Rudner

For decades, well-informed HR professionals and employment lawyers have relied upon the “Bardal factors” when assessing an employee's entitlement to notice of dismissal.

We have known better than to rely upon the mythical rule of thumb of “one month per year of service,” because the courts will consider more than just the individual's tenure with the company. While other factors may be relevant in unusual circumstances, the core factors, as set out in Bardal, are:

•length of service

•age

•position/character of employment

•availability of comparable employment.

Recent court decisions, however, suggest an employee's position or character of employment may no longer be a significant factor. While in the past, the Ontario Court of Appeal appeared to have established a cap of 12 months’ notice for unskilled or clerical workers, recent decisions, including one by the Ontario Court of Appeal, explicitly reject position as an important factor.

In Di Tomaso v. Crown Metal Packaging Canada LP, the employee was 62 at the time of termination. He had worked for the Crown Metal for more than 33 years in an unskilled/labourer position. He was provided with working notice (which caused some some controversy, as the termination date repeatedly changed) and 26 weeks of severance pay pursuant to the Employment Standards Act. 

The employee sued and  brought a motion for summary judgment. The company took the position he was entitled, at most, to 12 months’ notice because he was an unskilled and low-level worker.

However, the motion court judge disagreed such a cap existed in the current state of the law, and awarded 22 months’ pay in lieu of notice. The company appealed to the Court of Appeal, which upheld the original decision.

In so doing, it referenced the Supreme Court decision in Honda Canada Inc. v. Keays,  which confirmed that “no one Bardal factor should be given disproportionate weight.”

The Court of Appeal held "there is recent jurisprudence suggesting that, if anything, (position/character of employment) is today a factor of declining relative importance."

The lesson for employers is they cannot assume "low-level" employees will not be entitled to substantial notice of dismissal. Conversely,  higher-level employees should not assume they will automatically be awarded lengthier notice periods. Courts have clearly signaled they will not blindly accept more junior-level employees will have an easier time finding new employment. Parties will have to adduce evidence of the availability of comparable positions if they want to rely upon such an argument.

The Court of Appeal also confirmed that, in order to be effective, notice of dismissal must be clear and unequivocal, and this includes the actual date of termination. Employers should avoid vague notices that an individual's employment will "have to end soon," or will end "when the company is sold," or anything else that does not provide a specific end date.

That will not, in most circumstances, constitute effective notice.

Stuart Rudner is a leading, Toronto-based HR lawyer and a partner in the labour and employment law group at Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (416) 595-8672 or srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @CanadianHRLaw.
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