Work piled up for employee on modified work after company’s rapid expansion was followed by staff cuts
An Alberta company who fired an employee for non-performance after getting rid of everyone who helped him and he fell ill owes him six months’ pay in lieu of notice, the Alberta Provincial Court has ruled.
Dindo Tipon was hired by Fleet Brake Parts & Services — an Edmonton-based heavy truck parts and services provider — in April 2011 to be a safety training officer. His responsibilities included managing the safety requirements of four Alberta offices and maintaining Fleet Brake’s certificate of recognition (COR) certification. COR certification involved thorough safety audits performed both by the company and external auditors and maintaining ongoing safety records. Such certification provided credibility for the company as a safety leader, discounted workers’ compensation premiums, and certain government clients required it. These duties required Tipon to travel frequently between branches.
Tipon worked closely with one of the company’s vice-presidents, Shawn Johns, who met with him daily and helped him complete his tasks. Tipon received positive annual performance reviews in 2012 and 2013.
In January 2014, Tipon developed an autoimmune disease that affected his skin, spleen and gums. He suffered from sleep deprivation, low energy, and memory problems. He sometimes had to take time off and at times couldn’t work a full week. The treatment involved a significant amount of steroids and a slow recovery process. Side effects included irritability and impatience.
Tipon advised Johns of his disease in early February 2014, and Johns responded by appointing an assistant to work with Tipon and assume some of his duties.
However, a month later, Johns left Fleet Brake after a dispute over the company’s aggressive expansion plan, which intended to double the number of branches in 2014. The vice-president of the Calgary office, Mel Palma, became Tipon’s supervisor.
Because Palma was in Calgary, Tipon would no longer be able to interact with his direct supervisor on a daily basis. In fact, there was little contact between them at all and Tipon and his assistant were the only corporate employees left in Edmonton.
Rapid expansion, increased workload
Fleet Brake proceeded to open four new offices and all came under Tipon’s responsibility for safety matters while his assistant assumed responsibilities for the Edmonton office. However, the increased workload exacerbated Tipon’s symptoms and he had to take a medical vacation in his native Philippines. When he returned on May 26, he assumed a modified work schedule that allowed him to avoid travelling. His assistant completed all external audits and reported to him.
The modified work arrangement continued until September, when Tipon sent a general email message to Fleet Brake employees indicating he intended to complete the COR audit with the assistant’s help. However, on Sept. 18, Palma instructed Tipon to fire the assistant. Tipon disagreed with the decision as he found the assistant vital to completing safety audits and overseeing all eight offices. He also said he wouldn’t be able to work towards the COR external audit — scheduled for Dec. 31 — for at least another month because he was preoccupied with processing workers’ compensation claims. However, Palma stuck with his decision and the assistant was dismissed on Sept. 24, leaving Tipon the only corporate employee left in Edmonton and solely responsible for processing workers’ compensation claims and co-ordinating COR for all eight branches.
In late fall 2014, the Manufacturers’ Health and Safety Association (MHSA) — the external auditor performing the Dec. 31 COR audit — asked Tipon to provide the necessary information by December. Tipon replied that he couldn’t meet the deadline and asked for an extension, and MHSA asked for a medical report to support his request. Tipon responded with details about his illness and the fact he lost his assistant on short notice. However, his application for an extension was rejected on March 27, 2015, and Fleet Brake lost its COR certification soon after.
In May 2015, Tipon went on vacation. When he returned on May 27, Fleet Brake terminated his employment, providing four weeks’ pay in lieu of severance and halting his benefits. On June 8, the company sent Tipon written confirmation that “non-performance was the reason for your termination.” The company felt that Tipon should have notified both it and the COR authorities sooner and by the time he requested an extension, it was too late. It went on to say that the entire company was required to help out and his position had been filled by an employee in Calgary.
The court noted that Tipon’s position involved a lot of responsibility and significant detail, and when the company expanded it increased his workload. When Tipon became ill, work began to pile up, especially after Johns, who mentored and helped him, left. Though he had an assistant for a while, it wasn’t enough to stop the work from piling up and it became unmanageable when the assistant was dismissed, the court said.
The court found Tipon didn’t display any “incompetence or deception” after his assistant was fired. He made it clear he wouldn’t be able to complete the COR audit by the deadline and the company’s expansion combined with his illness was making his workload untenable. Things were exacerbated by the fact his supervisor was in Calgary and didn’t communicate much with him.
Though the COR extension wasn’t rejected until March 27, 2015, Tipon had been warning Fleet Brake since September it was in jeopardy and tried to save the assistant’s job. However, Fleet Brake’s elimination of assistance for Tipon when it fired the assistant and direct supervision and support when it failed to replace Johns made it virtually impossible for Tipon to complete his tasks. These actions repudiated the employment contract, the court said.
“The employer was required to provide adequate supervision and support for Mr. Tipon, even if (he) was not ‘asking’ for help,” said the court.
The court also found Fleet Brake’s stated reason for dismissal of “non-performance” was “clumsy and inaccurate” and took no responsibility. This was troublesome but not specifically directed at Tipon in bad faith that would warrant punitive damages. The combination of rapid expansion followed by an economic contraction — leading to the desire to close the Edmonton corporate branch — created a “perfect storm” that swept up Fleet Brake, the court said.
