When an employee is terminated from a position of employment without just cause (in other words, the employee did not do anything wrong), the law requires that the employee be given “reasonable notice” of his or her dismissal.
Most often, employers will make a lump-sum payment to the dismissed employee, called severance, in lieu of keeping that employee in the workplace during the notice period.
In a recent case from the Nova Scotia Supreme Court (Reiner v. Maritime Business College (2009) Ltd., 2016 NSSC 291 (CanLII)), Justice Chipman found that reasonable notice is dealt with on a case by case basis and done so by considering the Bardal Factors. The “rule of thumb” of one month per year of employment should not be relied on as it puts too much emphasis on the length of service factor.
Dr. Reiner was a veterinarian employed as veterinarian instructor in the Maritime Business College’s (“MBC”) veterinarian technician program. She applied for the position while on maternity leave from a regular part-time position at the Halifax Veterinary Hospital Inc.. During Dr. Reiner’s employment with MBC, she saw her duties shift from primarily instructive to primarily administrative, in part, due to dwindling enrollment numbers. Dr. Reiner was employed with MBC for approximately 17 months before being terminated due to a “shortage of work”, and was provided with two weeks’ pay in lieu of notice.
Dr. Reiner claimed she was entitled to reasonable notice of 6-9 months, while MBC suggested a reasonable notice period was in the 1-2 month range.
To determine reasonable notice, Justice Chipman relied on the Bardal factors, namely:
• character of the employment;
• length of service;
• age of the employee; and
• availability of similar positions, given the employee’s experience, training and qualifications.
Although not exhaustive, Courts consistently use the Bardal factors to determine reasonable notice. Justice Chipman also cited decisions which favour using an individualized process to determine reasonable notice, and which note that the “rule of thumb” is contrary to such a process.
In addition to the Bardal factors, Justice Chipman considered whether:
• Dr. Reiner’s previous employment was secure;
• Dr. Reiner was induced to leave her previous employment; and
• Dr. Reiner mitigated her damages.
Justice Chipman found Dr. Reiner’s employment shifted to a primarily administrative position, but that her veterinary qualifications were not to be disregarded. While Dr. Reiner was looking to focus on educational oriented positions in the future, there were a number of available veterinarian positions Dr. Reiner was qualified for in the Halifax area. There was no dispute on Dr. Reiner’s age at termination (36) and period of service with MBC (17 months).
Furthermore, Justice Chipman found Dr. Reiner’s previous employment was neither secure nor did MBC induce her to leave that employment. To extend the notice period, the inducement must be beyond the ordinary level of persuasion, which was not present in Dr. Reiner’s case. As such, MBC did not act in bad faith warranting a higher measure of damages.
Finally, Justice Chipman found Dr. Reiner made reasonable efforts to mitigate including, “diligently monitoring available job postings, considering numerous positions, and applying for a number of jobs offering comparable terms of employment.”
Based on the foregoing, Justice Chipman awarded damages consisting of 3.5 months of pay in lieu of notice, subject to the two weeks already provided, and pre-judgment interest on that amount.
Dr. Reiner’s case provides an example of the application of the Bardal factors, and other applicable considerations, in determining reasonable notice.
Employers should not rely on the “rule of thumb” to determine a reasonable notice period for an employee, and instead looking at all of the employee’s circumstances, and in particular the Bardal factors, is best practice. Furthermore, employers should keep in mind circumstances before the employment relationship begins, such as the security of the prospective employee’s current employment, and any actions to induce the employee to the new position, as these may play a role in determining reasonable notice should the employment relationship come to an end.
Dr. Reiner’s case also provides a reminder to terminated employees to take steps to mitigate their losses, and document the steps they take, as was done in this case. Failure to do so could result in a reasonable notice period and any damage award being reduced.
Please remember every case is different. If you are facing a termination issue as an employee or an employer please contact one of Key Murray Law’s Employment Law lawyers who will happily discuss your matter with you.
Richard Collier
Associate Lawyer
richard.collier@keymurraylaw.com
+1 (902) 368-7830
Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.