An issue that has arisen of late if how you calculate "bonus" on termination in a recession.
Assuming that a bonus is non-discretionary or has become non-discretionary in one way or another, Courts will often include some component of bonus through the period of reasonable notice. They are generally called upon to assess what the employee likely would have received as a bonus had he or she remained at work through the period of reasonable notice.
There is no science to this. One common method is for the court to take an average of the bonus that the employee received in a number of years (say 3) preceding the termination and use that average as a basis for calculating the bonus through the period of reasonable notice. On that theory, the past is an indicator of the future ("if you received an average bonus of $10,000 over the past 3 years, then we should expect that you will receive a bonus of $10,000 this year").
However, it seems that this analysis yields (potentially yields may be the better way of putting it) an inflated bonus calculation during a recession. In a recession, the past may not be an indication of the future and, indeed may overcompensate an employee through an overestimation of the bonus that he or she likely would likely have received through the notice period.
If the purpose (or one of them) of the reasonable notice period is to put the employee in the position he or she would have been in had he or she remained at work through the period of reasonable notice (rather than being terminated immediately), then maybe a better indicator or predictor of future performance relative to bonus is what's happening at the time of the termination or in the more recent past rather than by taking an average which includes significant bonus income earned and paid when economic and business times were very different than they are today.
Just a thought.
One of the purposes of administrative tribunals is to provide an expeditious and inexpensive method of settling disputes. Often, these proceedings are much less formal than judicial proceedings. In keeping with this objective, a number of tribunals do not transcribe their proceedings – for example, the Ontario Labour Relations Board, the Human Rights Tribunal of Ontario and labour arbitrators under the Labour Relations Act.
If extensive affidavits can be filed on applications for judicial review in order to permit parties to challenge findings of fact before such tribunals, there would be a significant incentive for parties to seek judicial review since they could then attempt to reframe the evidence that was before the arbitrator. As a result, the process of judicial review is likely to be more prolonged and more costly.
Moreover, there may be real difficulties in trying to recreate the evidence before the tribunal, where the parties have conflicting views as to what has been said. Where there is a dispute about the evidence, the reviewing court will be put in the unfortunate position of trying to determine what the evidence was before the tribunal in order that it can then decide whether the decision was unreasonable. Such a process is unfair to the administrative tribunal and undermines its role as a fact finder in a specialized area of expertise.
The Court found that the motions judge had misapplied Keeprite which remains the law in Ontario.
Does an employee have a reasonable expectation of privacy in data stored on the work computer? I recently touched on this in a presentation at the Osgoode Professional Development seminar Employment Law 2009 Proactively Managing Legal Risk in Challenging Times Employment Law where I spoke about Effectively Managing the Use of Technology and Company Property.
Dan Michaluk writes a Case Report – Ont. SCJ says no expectation of privacy in data stored on work computer where he reviews the recent case of R. v. Cole. Head over to Dan's blog for a detailed discussion of the case.
"In increasingly common open-plan offices, the violation of employees' privacy can often become an issue, as third parties overhear their conversations intentionally or unintentionally," the inventors say in their patent.
Their aim is to relieve people of that concern. Instead of plastic domes, they use a sensor network to work out where potential eavesdroppers are, and speakers to generate a subtle masking sound at just the right level.