On March 14, 2016, Ms. Esther Brake, a 20 year employee of a McDonald’s franchise, was awarded pay in lieu of notice equivalent to 20 months remuneration totaling $104,499.33.
Ms. Brake was put on McDonald’s progressive discipline program and ultimately told that she failed the program and had to “take a demotion or go.” Ms. Brake refused the demotion and was dismissed for cause.
Subsequently, Ms. Brake claimed that she was wrongfully constructively dismissed and sought damages for common law notice and severance in accordance with the Employment Standards Act (ESA), 2000.
In Brake v PJ-M2R Restaurant Inc., 2016 ONSC 1795, the central issue was whether the Employer had cause to dismiss Esther Brake. The Judge determined that Ms. Brake had been constructively dismissed without cause and regardless of the fact that Ms. Brake began to work for a new employer during the notice period, the court did not offset the amounts to be paid by her mitigation income. The employer is appealing the decision and Bird Richard will provide an update on the status of the appeal.