The story behind one of the most important cases in Canadian employment law.
Transcript of Podcast (Note: Transcript is auto generated and unedited.)
If you’ve ever been fired from a job without cause, or if you’re an employer or HR professional who has terminated someone’s employment, you no doubt have been exposed to the Bardal factors.
You may not have called them that, but you no doubt took them into account when calculating how much pay in lieu of notice the worker is entitled to.
The factors are first age, second, length of service, third character of employment. And lastly, the availability of similar employment. There is no magical formula in determining what an employee is entitled to. But courts will almost always take those four factors into account.
That means HR professionals and employment lawyers will as well.
No one month per year of service rule
And despite what you may have read or heard, the one month per year of service rule does not work. It may be a good starting point, but a statistical analysis of cases rarely bears it out.
So in my role as publisher and editor in chief at Canadian HR Reporter during my time at Thomson Reuters, I wrote countless stories about the Bardal factors, but I never really explored the case directly.
Who was Bardal? What happened to him during his time at the Globe and Mail that led to the landmark 1960 court ruling that continues to echo in every workplace lawsuit today.
I’m Todd Humber and you’re listening to the punching the clock podcast.
The man behind the case
So simply put Bardal versus the Globe and Mail was a wrongful dismissal case that had its roots in Winnipeg in 1942.
At the time, Bardal was a manager of the Canadian Streetcar Advertising Company. Prior to that, he worked at the Winnipeg Tribune as assistant advertising manager.
The Toronto based Globe and Mail approached him and offered him the same position he had held at the Tribune. To entice him. The Globe said it expected its 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. Now, oddly, going through the court ruling, they actually never state what His age is. Despite the fact that such a big part of the case the information is missing from the court documents so but I met with a publisher where he again expressed concerns about changing jobs at his age after the conversation, but all agreed to sign with a starting salary of $6,500 a year.
That’s about $100,000 converted to 2019 dollars. His start date was pegged as Oct. 1,1942. So in 1955, the Globe and Mail was sold. The previous year Bardal had been promoted to the advertising manager position.
In 1955, he was appointed director of advertising and also appointed to be a member of the Board of Directors at the Globe and Mail. At the time, his employment was terminated. He was earning just under $1,500 per month, which is about $14,200 converted to 2019 currency, or an annual take about $170,000 a year in today’s dollars.
So a very, very well paying job. He also received profit sharing that between 1956 and 1958 range from just over $3,000 to $6,500 annually. Again, if we convert that to 2019 dollars that’s anywhere from $28,000 to about $62,000 in annual bonus.
So on April the 23rd 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 somebody new who could improve the advertising business. Bardal refused to resign, and he was subsequently terminated.
In relatively short order, he did find a new job at an advertising agency for two years with a salary of $15,000. Under the terms of his Globe and Mail 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 choosing to not take the lump sum and take the monthly payments.
The Globe and Mail denied that it had wrongfully dismissed Bardal.
It took the position that he had voluntary withdrew his employment. Now I’m going to kind of sort of quote from the court ruling with a little bit of paraphrasing, but so this is what it said in the court document.
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 that Bardal was advertising manager obtain the results which the Globe was reasonably entitled to expect.
But that, of course, is not sufficient cause to fire an employee. So the court then turns its attention to the only matter at hand, which is how much notice was Bardal was entitled to for termination of employment.
The Court pointed out that his position is advertising manager was one of the most important offices at the newspaper. It also noted that Bardal had been appointed to the Board of Directors, which provided evidence of the, quote, permanent character of his employment and the importance of the office unquote.
Landmark court statement
Then the court went on to make this landmark statement, which still reverberates in nearly every employment law case today. This is what the court said word for word.
“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 servants, the age of the servant, and the availability of similar employment. Having regard to the experience training and qualifications of the servants.”
I kind of love the language that was used in the 50s. And you know, when the court ruling actually came up, 1960. But you know, there was still that notion of master and servant in the employment relationship with the Master, of course, being the employer, and the servant being the employee, just a an interesting historical oddity, we have clearly gotten away from that language, which is a good thing.
But here you have it 1960, the employee is called a servant. So applying applying all of this to the Bardal situation, the court said that Bardal 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. And it pointed out that there are a few comparable offices available in Canada, there’s only so many large newspapers where you can serve as the advertising manager.
That was the case in 1960. And it is certainly the case today. So, the Court also said that Bardal mitigated his damages by taking a job with the advertising agency, that employment was of a different character than his job at the Globe. taking all that into account, the court ordered Baldoyle Bardolph, one years notice of termination, he had been employed, employed at the globe at the time for about 16 years.
So what you end up with is an employee with 16 years experience getting 12 months notice of termination. That was in 1960. Clearly, this case has been referenced in almost every single wrongful dismissal or constructive dismissal case in Canada. And it’s been interesting to watch over the years that the amount of notice basically creeping up in depending on the lawyer you talk to, they will often point out that over the years, they’ve seen an increase in what is given to employees who are terminated after relatively short periods of time, which is why the one month per year of service does not really pan out.
So if you have been terminated from your work, or if you are an employer looking to terminate somebody, you’re always advised to go talk to a to seek legal counsel, talk to a lawyer, work out the package that is, you know, depending on what side of the table you’re sending on the most advantageous. So once again, I’m Todd Humber, thank you for listening today. For more information, please visit North Wall media.com Thank you