Burger King’s failure to follow procedure in demoting employee changed terms of employment

Assistant manager was not given any warning or criticism before demotion

An assistant manager at a Burger King restaurant was a victim of constructive dismissal when her employer mishandled her demotion, the British Columbia Provincial Court has decided.

Chelsea Watson, 21, was an assistant manager of a Burger King in Duncan, B.C., when she was promoted to manager in July 2004. She began the new position with a three-month probationary period beginning Aug. 1, 2004. On Jan. 14, 2005, Watson was presented with a letter from the restaurant’s owner stating that after “seriously reviewing” her job performance, he was demoting her to assistant manager.

Watson did not work a shift after that but returned to the restaurant on Jan. 25, 2005, to find a copy of the employee handbook. While she was there, the owner called after having seen her on camera from his home computer. After an emotional conversation, Watson claimed he fired her. She told a supervisor and other staff she had been fired. Watson returned the next day to return her keys and swipe card to the supervisor but he told her she hadn’t been fired and should keep the card. Other employees also told her she hadn’t been fired. However, Watson continued to insist she had been and returned the card. The next day, after she failed to show up for a scheduled shift, another supervisor called her wondering why she wasn’t at work. The restaurant suspended Watson for two weeks without pay for her absence. This was followed by a one-month suspension on Feb. 14, 2005, when she didn’t return.

The court found Watson had no reason to believe she was fired in her telephone conversation with the restaurant’s owner because two of her supervisors and other employees all told her she wasn’t. The owner suspended her for not showing up for her shift and she was notified of the suspension and she remained on the work schedule. The court concluded a reasonable person should have understood she had not been terminated.

However, the series of events leading up to and including Watson’s demotion did not exonerate the restaurant. The court found although she had received some oral warnings, she had never received formal written discipline or criticism until she was demoted, at which point the owner told her she was below the acceptable standard and her hours and pay were reduced.

The court ruled Burger King management did not follow procedure in their handbook and Watson was not properly informed of her shortcomings and therefore was not given an opportunity to improve her performance. She hadn’t received any feedback after her probation ended in October and she continued in the role of manager. Because she was no longer a probationary employee, the court ruled, the demotion “unilaterally changed fundamental terms of (Watson’s) employment contract by decreasing her wages, hours, status and responsibilities.” According to the court, this was constructive dismissal and when Watson didn’t show up for work, she was accepting her employer’s termination of the employment contract.

Watson was awarded four weeks’ manager pay for constructive dismissal. See Watson v. Seacastle Enterprises Inc., 2007 CarswellBC 565 (B.C. Prov. Ct.).

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