Business Law Assignment

This assignment discusses the concept of wrongful dismissal and the duty to mitigate in employment law. It analyzes the case of Brake v. PJ-M2R Restaurants Inc. 2017 ONCA 402, where a long-term employee of McDonald's was wrongfully dismissed and sued her employer for damages. The court found that the plaintiff was entitled to receive notice of at least 20 months in respect to dismissal and awarded her an entitlement worth $104,499.33 in lieu of notice. The assignment concludes by stating that an employee can ask for damages in cases of wrongful dismissal.

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Running Head: BUSINESS AND CORPORATION LAW 0
Business Law Assignment
7/20/2018
Student’s Name

Business Law Assignment 1
Contents
Introduction......................................................................................................................................2
Discussion........................................................................................................................................2
Case: Brake v. PJ-M2R Restaurants Inc. 2017 ONCA 402 2
Conclusion.......................................................................................................................................5
References........................................................................................................................................6

Business Law Assignment 2
Introduction
Under Employment Law, dismissal is a major issue that employee faces. This issue becomes
more crucial when an employer wrongfully dismiss an employee. What is wrongful dismissal? In
order to answer this question, this can be stated that a situation where an employer dismisses
his/her employee for an unjustified reason then such situation is treated as “Wrongful Dismissal”
(Minken Employment Lawyers, 2018). An employee is entitled to file a suit against his/her
employees in respect of wrongful dismissal (Feder, 2010). In conjunction with this employee can
also ask for the damages accrued due to such unlawful dismissal. In order to review the case and
provide judgment, adjudicating authorities review the manner in which dismissal has taken place,
therefore it can state here that in addition to every other aspect, the manner of dismissal is also an
important factor (Government of Canada, 2018). Further, in a situation of wrongful dismissal, it
is the duty of an employee to look for another employment during the period of proceedings of
the court. Such duty of an employee is known as “Duty to Mitigate” (Armstrong, 2016).
Discussion
Case: Brake v. PJ-M2R Restaurants Inc. 2017 ONCA 402
As earlier mentioned that wrongful dismissal is one of the lead issues in the area of
employment law, many of the cases have reported thereon related to this issue. In Canada, state
wise laws are there to protect the interest of employees in case of wrongful dismissal. The
mentioned case is one of the lead case in Canada in this area. In the referred case a long-term
employee of McDonald named Esther Brake (hereinafter termed as “the plaintiff”) who was
hired on the post of restaurant manager has received a notice of demotion on 2nd August 2012

Business Law Assignment 3
from her employer Perry McKenna (hereinafter referred as “the defendant”). At the time of this
notice, the plaintiff was 62 years old and has completed 25 years of working on the post of
manager. The plaintiff has refused to work at a junior position since she had reason to believe
that she would be humiliated. Due to her refusal to work on a lower post, the defendant has
dismissed to the plaintiff.
Then after, the plaintiff has sued the defendant asking for damages cause of wrongful
dismissal under the provision of Employment Standards Act 2000 (Monkhouse, 2018). The trial
court has found that the plaintiff was required to receive notice of at least 20 months in respect to
dismissal; hence, judge of the trial court has awarded an entitlement worth $ 104,499.33 in the
lieu of notice. In addition to the mentioned award, the trial judge also awarded the plaintiff with
reimbursement of pre-judgment cost and interest.
As earlier mentioned that in case of, wrongful dismissal, provisions of employment law
are there to protect the interest of employees, in the discussed case, the decision of the trial court
was in favor of the plaintiff. In the cases of wrongful dismissal, an employer can prove that such
dismissal was legal. In the referred case, the defendant has made an appeal, in against of the
decision of the trial court. In the submission, the defendant has stated that dismissal was a result
of the failure of performance of duty to mitigate on the part of the plaintiff. Further, the
defendant said that the performance of the plaintiff was getting down and they have no other
option except offering a junior post to the employee. Here, the employee failed to meet out her
duty, not the employer. In conjunction with this, the defendant also responded as that the
entitlement that trial court has provided to the plaintiff, must include the income that employee
has received during the notice period (CanLII, 2018).

Business Law Assignment 4
In order to decide the final judgment, the court was required to review the whole
circumstance of the case. It has come into light that
1. In November 2011 the defendant has transferred the plaintiff due to the downfall in her
performances. The place where such transfer has made was “trending badly” as per the
corporate documentation. Due to the condition of a new location, the defendant was not
able to perform well. This was the first time during the employment of around 20 years
when the performance of the defendant was continuously falling down.
2. During the period from November 2011 to April 2012, the defendant was continuously
trying to do better and was attending a shift of 12 hours to every day of the week despite
her old age.
3. Regardless of the previously mentioned point no. 2, the defendant summoned a meeting
in that plaintiff was placed on a plan/ progressive discipline program. In August 2012, the
plaintiff becomes unable to meet out the expectation stipulated under progressive
discipline program.
4. The defendant has offered the plaintiff to join the post of “first assistant” or to choose
termination (Schmitz, 2018).
As earlier mentioned that the plaintiff could not join the post of “first assistant” since the
same was of junior level in comparison to her current managerial post, she got the termination.
Before the court of appeal, defendant has presented her lead submission as that the trial court has
not considered the fact that the plaintiff becomes fail to meet her duty to mitigate. Court of
appeal in it is finding, stated that the constructive dismissal was there. When employer provided
an option to the employee to choose a junior position was actually a circumstance of constructive
dismissal. Honorable judge Gillese J.A., did not become agree with the point raised by the

Business Law Assignment 5
defendant that the plaintiff has failed to perform her duty to mitigate. Judge of the court of appeal
Mr. Gillese J.A has held that in the cases of mitigation, this is necessary to check that whether
the employee was in a condition to switch over another employment. The employee is not
obliged to mitigate by working in an atmosphere where he/she can feel humiliation or
embarrassment. Further, in respect of notice period, Gillese J.A has mentioned that as nothing
was mentioned in the employment agreement, the trial court calculated the reasonable notice
period (Rudner, 2018). Moreover, by giving the reference of the cases it was held that in such a
situation, the burden of the proof is on the employer. How much income should be treated as
mitigation income, is also up to the employer. At last, in the discussed case, the appeal was
dismissed and cost fixed at $19,500.00.
Conclusion
After the required discussion of basic concepts related to wrongful dismissal and study of
the provided case, it can be stated that an employee has an entitlement to take an action against
his/her employer in the case of wrongful dismissal. The court will see the circumstances and will
check that whether an employee was able to get an alternative employment and the same became
failed to perform his/her duty to mitigate. It is also necessary to mention that in order to meet the
duty to mitigate, an employee must be comfortable to join the new employment. An employee
will not be liable to join an employment if the same is expected to feel embarrassed or
humiliated over there. In the area of employment, many laws have developed to safeguard the
interest of employees. In addition to this, what decision court will be given is dependent on the
specification of the cases. Hence, in conclusion, this can mention that an employee can ask for
damages in cases of wrongful dismissal.

Business Law Assignment 6
References
Armstrong, W., J. (2016). The Duty to Mitigate and its Impact on Damages. Retrieved from:
https://www.globalworkplaceinsider.com/2016/09/the-duty-to-mitigate-and-its-impact-
on-damages/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-
Original
CanLII. (2018). Court of Appeal for Ontario. Retrieved from:
https://www.canlii.org/en/on/onca/doc/2017/2017onca402/2017onca402.html
Employment Standards Act 2000
Feder, J. (2010). "Don't Ask, Don't Tell": A Legal Analysis. US: DIANE Publishing.
Government of Canada. (2018)Unjust Dismissal. Retrieved from:
https://www.canada.ca/en/employment-social-development/services/labour-standards/
reports/unjust-dismissal.html
Minken Employment Lawyers. (2018). Wrongful Dismissal—What Makes it Wrong? Retrieved
from: https://www.minkenemploymentlawyers.com/employment-law-issues/wrongful-
dismissalwhat-makes-them-wrong/
Monkhouse, A. (2018). The Ontario Court of Appeal Clarifies the Law on Mitigation. Retrieved
from: http://canliiconnects.org/en/summaries/46138
Rudner, S. (2018). Ontario Court of Appeal addresses the issue of what constitutes mitigation
income. Retrieved from: http://blog.firstreference.com/issue-constitutes-mitigation-
income/

Business Law Assignment 7
Schmitz, C. (2018). Updated: Ontario Court of Appeal clarifies employment law on mitigation of
damages. Retrieved from: https://www.thelawyersdaily.ca/articles/3809