Overworked, sick employee in Alberta wrongfully dismissed for not doing job

Work piled up after company opened four new offices, while also cutting staff
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 05/01/2017

An Alberta company that fired a worker for non-performance — after getting rid of people who helped him and he fell ill — owes the man 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. This 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 stamina, and memory problems. He sometimes had to take time off and at times couldn’t go to work over a full workweek. 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 February 2014, and Johns responded by appointing an assistant to work with Tipon and assume some of his duties while he recovered from his illness.

However, a month later, Johns left Fleet Brake after a dispute over the company’s aggressive expansion plan, which would double the number of branches in 2014. The vice-president of the Calgary office, Mel Palma, became Tipon’s immediate supervisor.

Because Palma was in Calgary, Tipon was 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.

Fleet Brake proceeded with its plan to open four new offices and all safety matters were Tipon’s responsibility. His assistant assumed safety responsibilities for the Edmonton office. However, the increased workload exacerbated Tipon’s symptoms, and he took a medical vacation to his native Philippines. When he returned on May 26, he assumed a modified work schedule that allowed him to avoid travelling between offices. His assistant completed all external workplace audits and reported to him.

The modified work arrangement continued through the summer 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 his assistant. Tipon disagreed because he found the assistant vital to completing safety audits and overseeing all eight offices. He also said he would not 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 the 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, so 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 again to the Philippines. 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  his termination.”

The company felt 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 the entire company was required to help out and his position had been filled by an employee in Calgary, leaving no corporate employees left in Edmonton.

Court weighs in

The court noted that Tipon’s position involved a lot of responsibility and significant detail, and when the company expanded, that increased his workload. When Tipon became ill, work began to pile up, especially after Johns left. Though Tipon 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, said the court.

Tipon didn’t display any “incompetence or deception” after his assistant was fired, said the court. 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, were making his workload untenable. And he genuinely believed he would get an extension and be able to complete the COR audit information by the extended deadline. Things were exacerbated by the fact his supervisor was in Calgary.

Though the COR extension wasn’t rejected until March 27, 2015, Tipon had been warning Fleet Brake since September that it was in jeopardy and he tried to save the assistant’s job. However, Fleet Brake’s elimination of both this assistance and the direct supervision and support provided by Johns made it virtually impossible for Tipon to complete his tasks. These actions repudiated the employment contract, said the court.

“The employer was required to provide adequate supervision and support for Mr. Tipon, even if (he) was not ‘asking’ for help.”

The court also found Fleet Brake’s stated reason for dismissal of non-performance was “clumsy and inaccurate” and took no responsibility for the state of things. This was troublesome, but not specifically directed or calculated at Tipon in bad faith that would warrant punitive damages.

Ultimately, the combination of rapid expansion followed by an economic contraction — leading to the desire to close the Edmonton branch by eliminating the last employee there — created a “perfect storm” that swept up Fleet Brake, said the court.

Tipon was wrongfully dismissed, said the court, in awarding him six months’ pay and benefits in lieu of notice, minus the one month’s pay the company already provided and the amount Tipon earned in alternate employment for one-and-a-half months during the notice period. The total award was $28,709 — essentially three-and-a-half-months’ pay and six months of benefits.

For more information see:

Tipon v. Fleet Brake Parts & Service Ltd., 2017 CarswellAlta 412 (Alta. Prov. Ct.).

Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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