Reasonable Notice: Length of Service Does Not Require Mathematical Certainty

In determining reasonable notice of termination periods, courts today continue to be guided by the seminal decision Bardal v. Globe & Mail Ltd. and in particular the following passage:

“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.”

One of these factors, the length of service of the servant, proved rather difficult to pinpoint in one recent decision. However, as it turns out, pinpointing the length of service with absolute mathematical certainty might not be necessary.

Mr. Skowron’s Complicated Work History

The Skowron decision is about a dismissed employee, Mr. Skowron. Mr. Skowron was a professional engineer working as a Technical Manager and earning approximately $146,960 at the time of his dismissal. He was 61 years of age. He worked in a responsible and important position but was not a manager. These are all important factors under the Bardal test, and on the facts they were easily discernible. One factor, however, was not so easily discernible – his length of service.

Mr. Skowron’s length of service with the employer involves a rather complicated history of work. He was hired in November 1994 and worked until his resignation in 2000 (i.e., approximately 6 years of service). He intended to pursue a career as a consultant. Just 11 months later, the employer invited Mr. Skowron to return to work on a particular project under contract. At that time, there was no agreement that he would remain with the employer once the project was completed.

Then, in 2002, Mr. Skowron was contracted again for another specific project. In 2003, the employer decided they would simply re-hire Mr. Skowron. He entered into a new employment contract, one which was supposedly for a fixed-term. Mr. Skowron continued on with the employer after the fixed-term was completed, and remained there until his termination in 2020. Understandably, this rather odd employment history created some difficulty in accurately determining what Mr. Skowron’s length of service was. Did he work from 1994 to 2020? Did he work from 1994 to 2000 and then again from 2003 to 2020? Or, is only his service between 2003 and 2020 counted? What exactly was his length of service?

Length of Service: Not a Mathematical Equation

The trial judge was asked by the defendant employer the characterize Mr. Skowron’s employment as a 6-year job, followed by a 3-year consultancy, followed by a 17-year stretch of employment with the defendant. According to the trial judge, this was both technically and legally correct. Despite that, the trial judge took a different route. He commented:

“While the defendant is both technically and legally correct, the strict legalities of the situation do not address the issue. I am called to weigh factors. It is not a reductionistic inquiry as suggested by the defendant. Rather, the court takes a holistic approach to review all the relevant circumstances to try to arrive at an appropriate assessment of the amount of time reasonably required for the plaintiff to obtain new employment.”

A person looking at Mr. Skowron’s employment history with the defendant reasonably would see that he has worked with the defendant since 1994, except for the period of 11 months when he tried to go off on his own. Of his 27-year long career, 26 years were spent with the defendant. His job from 1994 to 2000, from 2000 to 2003, and from 2003 to 2020 remained the same. He did not have three different careers with three different employers – rather, his “entire working experience” was with the defendant employer.

Certainly, the employee did take a small break from his employment with the defendant. However, the trial judge noted that the determination of Mr. Skowron’s employment is not a binary one. The goal, the trial judge said, is not to punish Mr. Skowron for leaving for a year nor is it to reward the defendant employee for keeping meticulous records. Rather, the goal is to properly apply the Bardal factors to determine the appropriate notice period. Accordingly, the trial judge did not believe it was fair to characterize Mr. Skowron’s employment with the defendant as merely 17 years on account of the small break in employment. The application of the Bardal factors, he said, “is not mathematically precise. Nor is it intended to be.”

Determining The Notice Period

In considering all of the above, the trial judge concluded that a period of 24 months’ compensation was appropriate. Had the trial judge applied the Bardal factors “mathematically” by limiting Mr. Skowron’s length of service to 17 years, this number may have been shorter.