Quick Service, Long Notice Period - Constructive Dismissal Nets Employee $100k in Damages
THE FOLLOWING IS FROM STANCER GOSSIN ROSE'S BLOG, ORIGINALLY PUBLISHED IN SPRING, 2016 BY MYSELF AND MITCHELL ROSE.
While the majority of jobs in the quick service (or fast food) industry may be lower wage jobs, senior managers can earn significant salaries, with one dismissed employee recently receiving over $100,000 in damages for a constructive dismissal.
In Brake v. PJ-M2R, 2016 ONSC 1795, the Plaintiff had worked for McDonald’s Restaurants for 25 years, and nearly 20 with the same franchise. While her performance reviews were historically excellent, they began to slip in 2011, and she was asked to move to a different location – one of the worst performing in the country.
When the Plaintiff’s new location failed nearly impossible performance expectations, she was told she could ‘take a demotion or go.’ She subsequently sued for constructive dismissal. She managed to obtain employment elsewhere, but as a cashier and without the same seniority.
The Court held that the Defendant’s performance expectations were arbitrary and unfairly applied, and that while the employee was not incompetent, she was effectively set up to fail and thus constructively dismissed. Given her age (62 at termination), her length of employment with McDonald’s, her seniority, and her inability to reach the same success, she was awarded 20 months’ pay in lieu of notice, including benefits and her other requirements at law. At an annual salary of over $62,000, she received just over $104,000 !
The take-away (or, in this instance, the “take-out”):
If you are an employer, before making any changes to an employee’s job description – including, but not limited to, a demotion or change in location — it is important to obtain legal advice from an experienced employment lawyer – otherwise you could face allegations of constructive dismissal.
If you are employee whose job description has been unilaterally changed by your employer, it is vital that you obtain legal advice immediately in order to be made aware of your rights – and so that you can take the appropriate steps in a timely manner in order to preserve those rights.