Esther Brake is lovin’ it.
The fired McDonald’s manager who successfully sued after she was told she’d have to take a humiliating demotion or lose her job had reason to smile.
On Tuesday, Ontario’s highest court upheld a ruling by an Ottawa judge finding that the 67-year-old grandmother had been “set up to fail” and was constructively dismissed after more than 25 years working at McDonald’s restaurants in Ottawa and Newfoundland.
The court of appeal also found no reason to alter the judge’s decision to order McDonald’s to pay Brake $104.499.33 — plus interest and costs — to make up for the lack of notice and damages she suffered as a result. That’s on top of the additional $120,000 the company that manages the restaurant has been ordered to pay to cover Brake’s legal costs.
“I’m on top of the world,” said Brake Tuesday. “It means everything to me. I’m very, very happy that the courts took the time to listen to an individual who took a company like McDonald’s on, and we won.”
Brake said she hopes the appeal court’s decision will finally end the legal saga that began in 2012 after she was told she’d have to take a demotion to first assistant or be fired. The demotion didn’t involve a reduced salary, but would require Brake to report to a much younger manager she herself had trained, along with a significant loss in benefits.
The ultimatum came after Brake received her first negative performance review in November 2011 after a decade of positive assessments, court heard. Following that negative review, she was transferred from the restaurant she managed on Hazeldean Road to one of the worst performing McDonald’s in the country, located in the back corner of a Walmart store at the Kanata Centrum.
The judge found Brake was then put on a disciplinary program and subjected to performance standards that were arbitrary and unfair. Brake testified she worked 12 hours a day, seven days a week for five months. Brake achieved what the court described as “outstanding” scores compared with McDonald’s own corporate standards in customer service and quality and cleanliness, but just narrowly missed a third goal. Brake was told she had failed the program and would have to take the demotion or leave.
After leaving McDonald’s, she tried to find other management jobs, but got no offers. Attempts to set up a babysitting service and work as a cleaner also failed. Eventually she took a job with Tim Hortons, and later Home Depot as a cashier.
Brake said she is looking forward to her former employer finally paying up. But Brake doesn’t have any intention of quitting her current job — she had to dip into her retirement savings to survive after she left McDonald’s.
“I haven’t got anything yet,” said Brake. “Yes, it’s a lot of money but at the end of the day I have to watch every cent to keep on living.”
The owners of the McDonald’s franchise could still try to appeal the case to the Supreme Court of Canada, but the test for cases is stringent. Only a small percentage of cases are ever heard by the country’s top court.
A lawyer representing the McDonald’s franchise didn’t immediately reply to a request for comment Tuesday.
“My gut tells me this is over,” said Brake’s lawyer, Miriam Vale Peters. “Five years later she’ll see her money. That’s the reality of Esther Brake.”
Vale Peters said she never expected the case to drag on as long as it has.
“This is a case that I never thought would go this far,” she said. “In my experience, 99 cases out of 100 settle. I’m surprised, and I continued to be surprised up until the day I was to be in court, that we were still there.”
The court noted in an earlier decision that the judgments in the case could have been avoided if the McDonald’s offers to settle weren’t so “woefully inadequate.”
Brake said people have come up to her in the Home Depot store where she works now and told her they were proud of her for taking McDonald’s to court. Brake said she feels vindicated by the decisions from the two courts.
“The first thing I would tell anybody is, if they feel they are being treated unfairly — it’s a tough battle, I’m not saying it’s an easy battle — I tell them, ‘Go for it. Don’t hold back. Go for it.’ If you tell the truth, you could win.”