Termination of employment is never an easy thing, but in this economy, termination can come at any moment. You cannot just be fired without cause and expect to get nothing in return, you are entitled to severance pay.

Severance Pay

Severance pay is the common term for “pay in lieu of notice”. When you are terminated, your employer is obligated to either give you working notice (e.g. two weeks notice) or, if your termination is effective immediately, pay in lieu of that notice. There can also be a combination of the two (e.g. work for a week, get paid for a week).

There are two legal avenues to determine how much severance pay you get. First is the Employment Standards Code which sets out a minimum of how much you need to be paid. The second is the common law, or judge-made law. Common law notice is usually always more than what the Code says.

Meet Bardal

Several factors determine common law notice, called the Bardal Factors, after the case of Bardal v. Globe & Mail Ltd. These factors are:

• the character/nature of the employment
• the length of service of the employee
• the age of the employee
• the availability of similar employment, given the experience, training, and qualifications of the employee

The character or nature of the employment essentially means the role of the employee. Where they a professional? Were they management? What kind of management were they: upper, middle, lower?

The length of service is self explanatory but it is very common to hear falsehoods about a week or month per year of service as the rule. This is a myth – length of service is just one of the factors considered.

An employees age is also a factor. It is presumed that a younger person will more readily find employment or be able to retrain for a new job. The older you are, the more likely it is you will be entitled to a better severance.

The availability of similar employment is one of the hardest factors to measure. It asks how likely is a person to find a similar job to the one they were let go from? If someone takes a minimum wage job down from a well-salaried position, that doesn’t count; the job has to be similar to the one they used to have.

Negotiating Severance

It is best to retain a lawyer to help you negotiate the best severance possible. Usually, an employer will provide you with an offer and give you a few days to think about it; use this time to speak with a lawyer!

One thing they may want you to do is to sign a release. Do not sign anything until you have the chance to speak with a lawyer. Signing a release could prevent you from getting the severance you are entitled to.

If you have been terminated and are looking for the severance you deserve, contact a lawyer at Aarbo Fuldauer LLP in Calgary.

Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4

Phone: (403) 571-5120

Email: [email protected]

The information in the blog is not legal advice. Do not treat or rely upon it as legal advice.  If you require legal assistance, please contact a lawyer.