McDonald’s Manager Constructively Dismissed, Not “Lovin’ It”

by Samfiru Tumarkin


Tuesday, April 26th, 2016 at 12:35 pm


After working for McDonald’s for 26 years, 66-year-old Esther Brake was definitely not “lovin’ it” after she was forced out of her job as manager of the Kanata Centrum Walmart location in Ottawa, via constructive dismissal.

Brake started her career with the fast food chain in Newfoundland in 1986, where she was hired to flip burgers. She worked her way up the ladder to become restaurant manager.

She eventually moved with her family to Ottawa in 1999, where she took on responsibilities at a local McDonald’s. In 2011, she was moved to the Walmart location, which was one of McDonald’s worst performing stores in the country.

Brake, who often put in 12-hour days, was asked to achieve unrealistic goals. She was eventually asked to take an embarrassing demotion, which would have seen her take orders from much younger employees who she herself had trained.

Brake argued before an Ottawa judge that she was a victim of constructive dismissal. The owners of the McDonald’s franchise in Kanata believed otherwise, and were of the opinion that she should have accepted the demotion.

Earlier this year, Superior Court Justice Kevin Phillips concluded that this was, in fact, a case of constructive dismissal, and that Brake was set up to fail. She was therefore owed severance by her employer.

She was awarded the equivalent of 20 months salary and benefits, which worked out to $104,499.33.

Unfortunately, Brake will not be able to access her severance because the judgement is being appealed by Perry McKenna, the franchise owner of the McDonald’s in question.

A frustrated Brake told Postmedia News that “If they wanted to get rid of me, they should have done it the proper way, to give me severance and say, ‘You know what> Thank you Esther for your hard work.'”

 

What is Constructive Dismissal?

A constructive dismissal is a form of wrongful dismissal where an employer, by altering fundamental terms and conditions of employment and/or by making the work environment intolerable, “constructively” dismisses an employee.

Triggers for constructive dismissal can include a reduction in pay, a demotion that diminishes an employee’s stature, and unrealistic performance goals.

In all cases, a dismissed employee is entitled to pursue his or her legal entitlements. It is especially difficult for employers to establish “cause,” as it is considered the “capital punishment” of the employment relationship. If your employment was terminated for cause, speak to us; it is very likely that you are entitled to compensation. If you believe you are being “constructively” dismissed, it is very important to seek legal advice before you resign from employment or do something inadvisable to antagonize your employer or undermine your position.

 

Why is McDonald’s Appealing?

Representatives of the McDonald’s franchise in question have indicated that they are appealing the judge’s decision based on the fact that, in their opinion, the judge erred. They claim that they never actually fired Brake, and that the size of her severance was inappropriate.

While this decision is ultimately a bad PR movie by the fast food giant, they may be taking this course of action in an attempt to pressure Brake to settle the dispute and accept a smaller payment.

 

Lior Samfiru, partner with Samfiru Tumarkin LLP, discussed this case on Newstalk 580 CFRA’S Morning Rush with Bill Carroll. Lior revealed how often he encounters cases like the one involving Esther Brake, and what McDonald’s appeal means for the disgruntled former employee:

 

 

If you have any questions regarding wrongful dismissal, or you believe you have been constructively dismissed, please contact Lior Samfiru: lior@stlawyers.ca

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