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ARTICLE · 27 MAY 2016

She's Lovin' It! Poor Use Of Performance Plan Leads To Wrongful Dismissal

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Given Brake's approximately 20 years of service and age (62), the Court awarded her 20 months' notice, totalling $104,499.33 in damages.

CanadaEmployment and HR
Dave McKechnie
Dave McKechnie
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The recent Ontario Superior Court of Justice decision in Brake v. PJ-M2R Restaurant Inc. (2016 ONSC 1795) provides a useful reminder to employers of how not to use performance improvement plans ("PIPs"). It also demonstrates the challenges employers face in dismissing long-service employees for cause due to poor performance.

Background Facts

Esther Brake was a 20 year employee of PJ-M2R Restaurant Inc., a McDonald's franchisee. Brake managed the employer's McDonald's franchise in Kanata, Ontario from 2004 to 2011, receiving very strong performance evaluations until 2011.

After receiving her first negative performance review in November 2011, Brake was transferred to another of the employer's franchises, a small, chronically underperforming McDonald's restaurant located in a Wal-Mart. Three months after Brake began managing the Wal-Mart location, she was put on a PIP.

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