McKenna said she had to “take a demotion or go.” Brake refused to accept the demotion and left, never to return. iStock
An Ottawa woman who worked for McDonald’s restaurants for more than 25
years has received $104,499.23 in lieu of 20 months notice for wrongful
In Brake v. PJ-M2R,
a McDonald’s franchise holding company with several outlets in Ottawa,
Ontario Superior Court Justice Kevin B. Phillips decided that “in the
overall circumstances, PJ-M2R unilaterally made a substantial and
fundamental change to Esther Brake’s employment contract and that in
doing so constructively dismissed her without cause.”
On Aug. 2, 2012, PJ-M2R ended Brake’s employment after 20 years with
the company. Brake felt she was constructively dismissed and sought
damages for common law notice and severance.
Employment lawyer Ellen Low, of Whitten & Lublin, says the amount
awarded “isn’t totally out of the ballpark” largely due to Brake’s age
and years of service.
“While it’s always an individual assessment every time and we know
the Court of Appeal hasn’t said one month per year, she’s been there 20
years and is 62 years old at the time she is let go,” says Low. “So
despite the fact most people would assume this is a lower managerial
position, whenever you’re dealing with someone who is 62 it may become
PJ-M2R’s owner, Perry McKenna, thought he had the right to terminate
Brake since she failed to meet the standards expected of her position.
At the time Brake was dismissed, she was 62 years old (now 65) and
had worked for McDonald’s for the majority of her working life — about
20 of those years was for PJ-M2R. Her career with the restaurant chain
started in 1986 in Corner Brook, Nfld. She moved to Ottawa in 1999 and
started working for PJ-M2R and was considered a top employee for many
years. In 2004, she was promoted to store manager. From 2000 to 2007,
she received high ratings in her performance reviews.
In 2008, Brake was transferred to manage the company’s Kanata, Ont.,
McDonald’s. As part of her duties, she also managed a nearby McDonald’s
located within a Wal-Mart store. Eventually, in November 2011, Brake was
assigned exclusively to the Wal-Mart location.
Her first negative review came in 2011 from McKenna. The Wal-Mart
location she had been transferred to had been trending badly since at
least April 2011. The location ranked 1,410 out of 1,437 McDonald’s
restaurants in Canada.
On April 16, 2012, Brake was summoned to a three-month review
meeting. She received another overall rating of “needs improvement.” At
the meeting, she was informed that as a result of her performance, she
would be participating in McDonald’s progressive discipline program
known as Goals Achievement Process.
On Aug. 2, 2012, McKenna told Brake she had failed the GAP program
and they needed to discuss her future. She argued she should be allowed
to stay on as a manager, but she was offered the position of first
assistant. The salary would be the same, but the benefits would be less.
She would also have to report to employees she had trained and
supervised, many who were younger and less experienced.
McKenna said she had to “take a demotion or go.” Brake refused to
accept the demotion and left, never to return. The termination of her
employment “for cause” was sent to her in writing soon thereafter.
In his decision, Phillips wrote: “I find that the GAP program was not
implemented in accordance with its terms, either in letter or spirit.
The thresholds that Ms. Brake was ordered to meet were arbitrary and
Since her dismissal, despite several efforts, Brake was not able to secure a comparable managerial position.
Phillips wrote that Brake was “set up to fail” from the beginning of the GAP program.
“I find that in the overall circumstances, PJ-M2R unilaterally made a
substantial and fundamental change to Esther Brake’s employment
contract and that in doing so constructively dismissed her without
cause,” wrote Phillips.
In March 2013, Brake accepted a position as a cashier at Home Depot.
She works about 35 hours a week and earns $12.50 per hour. She continues
to work there.
originally appeared on Legal Feeds
, the blog of Canadian Lawyer
and Law Times