If you’ve ever been involved in a workplace termination in Canada, regardless of what side of the table you’re sitting on, you’ve likely been exposed to the Bardal factors.
Perhaps you didn’t call them that but, in negotiating severance packages for dismissals without cause, you no doubt took them into account when doing the math. The well-worn factors are:
· length of service
· character of employment
· availability of similar employment.
There is no magical formula in determining what an employee is entitled to, but courts will almost always take these four factors into account. That means HR professionals and employment lawyers will as well and, despite what you may have read or heard, the one-month per year of service rule doesn’t work. It may be a good starting point, but a statistical analysis of cases rarely bears it out.
I’ve written countless stories over the years about the factors, but never really explored the case directly. Who was Bardal? What happened to him during his time at the Globe & Mail that led to the landmark 1960 ruling that continues to echo in every workplace lawsuit today?
The story behind the factors
Simply put, it was a wrongful dismissal case that had its roots in Winnipeg in 1942.
At the time, Bardal was manager of the Canadian Street Car Advertising Company. Prior to that, he worked at the Winnipeg Tribune as assistant advertising manager. The Toronto-based Globe & Mail approached Bardal and offered him the same position he had held at the Tribune.
To entice him, the Globe said it expected the advertising manager to retire shortly and Bardal would likely take over that position when it became free.
Bardal was reluctant. He wanted assurances from the Globe that, because of his age, the employment be permanent. (Oddly, his precise age is never stated in the case.)
He met with the publisher, where he again expressed concern about changing jobs at his age. After the conversations, Bardal agreed to sign on with a starting salary of $6,500 a year (about $100,000 in 2019 dollars). His start date was pegged as Oct. 1, 1942.
In 1955, the Globe was sold. The previous year, Bardal had been promoted to advertising manager. In 1955, he was appointed director of advertising and a member of the board of directors.
At the time his employment was terminated, Bardal was earning $1,479.16 per month ($14,200 in 2019 dollars or an annual take of $170,000.) He also received profit sharing that between 1956 and 1958 ranged from $3,095 to $6,538 annually. (About $28,000 to $62,000 in 2019 dollars).
On April 23, 1959, Bardal was summoned to the president’s office. He was asked for his resignation and promised six months’ salary to help him transition to new employment. The Globe asked for him to step down because it had been losing money and wanted someone new who could improve the advertising business.
Bardal refused to resign and was subsequently terminated. In relatively short order, he found a new job at an advertising agency with a salary of $15,000 for two years. Under the terms of his Globe pension, he had a choice between a lump sum amount of $5,000 or a pension of $1,350 per year. He took the latter option.
Globe denied wrongful dismissal
The Globe denied it had wrongfully dismissed Bardal, taking the position he had voluntarily withdrew his employment.
“In the alternative, it was pleaded that if the (Globe) did terminate (Bardal’s) employment it was justified in doing so by reason of the fact that the advertising department did not, during the period the plaintiff was advertising manager, obtain the results which the (Globe) was reasonably entitled to expect,” according to the court ruling.
That, of course, is not sufficient cause to fire an employee. The court then turned its attention to the only matter at hand – how much notice was Bardal entitled to for termination of employment?
The court pointed out that his position as advertising manager was “one of the most important offices” at the newspaper. It also noted Bardal had been appointed to the board of directors, which provided evidence of the “permanent character of his employment and the importance of the office.”
The court went on to make this landmark statement, which still reverberates in nearly every employment law case today:
“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 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.”
Applying this to Bardal’s situation, the court said:
· He was, through a lifetime of training, qualified to manage the advertising department of a large metropolitan newspaper
· His whole training had been in the advertising department of two large daily newspapers
· There are few comparable offices available in Canada
· Bardal mitigated his damages by taking a job with an advertising agency, though that employment was of a different character than his job at the Globe
Taking all that into account, the court awarded Bardal one year’s notice of termination. He had been employed at the Globe for more than 16 years.
Listen to a podcast of this story at https://soundcloud.com/user-386884479/the-story-of-bardal-versus-the-globe-and-mail
See Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC). Full decision available online at https://www.canlii.org/en/on/onsc/doc/1960/1960canlii294/1960canlii294.html