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CANADIAN HR REPORTER May 1, 2017 EMPLOYMENT LAW 5 Jeffrey Smith Legal View LeNoury Law Proactive Advice to Management Employment Lawyer of The Year James LeNoury B.A. (Hons) M.A. LL.B 416-926-1107 • Toll Free 1-877-926-1107 • lenourylaw.com Overworked, sick employee in Alberta wrongfully dismissed for not doing job Work piled up after company opened four new offices, while also cutting staff An Alberta company that fired a worker for non-performance — after getting rid of peo- ple 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 Ed- monton-based heavy truck parts and services provider, in April 2011 to be a safety training officer. His responsibilities included man- aging the safety requirements of four Alberta offices and maintain- ing Fleet Brake's certificate of rec- ognition (COR) certification. is involved thorough safety audits performed both by the company and external auditors, and main- taining ongoing safety records. Such certification provided credibility for the company as a safety leader, discounted work- ers' compensation premiums, and certain government clients required it. ese duties required Tipon to travel frequently be- tween 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 an- nual performance reviews in 2012 and 2013. In January 2014, Tipon devel- oped an autoimmune disease that affected his skin, spleen and gums. He suffered from sleep depriva- tion, low energy and stamina, and memory problems. He some- times had to take time off and at times couldn't go to work over a full workweek. e treatment in- volved a significant amount of ste- roids and a slow recovery process. Side effects included irritability and impatience. Tipon advised Johns of his dis- ease in February 2014, and Johns responded by appointing an assis- tant to work with Tipon and as- sume 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 expan- sion plan, which would double the number of branches in 2014. e vice-president of the Calgary of- fice, Mel Palma, became Tipon's immediate supervisor. Because Palma was in Calgary, Tipon was no longer be able to in- teract 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 as- sumed safety responsibilities for the Edmonton office. However, the increased workload exacer- bated Tipon's symptoms, and he took a medical vacation to his native Philippines. When he re- turned 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 arrange- ment continued through the summer until September, when Tipon sent a general email mes- sage to Fleet Brake employees in- dicating he intended to complete the COR audit with the assistant's help. However, on Sept. 18, Palma instructed Tipon to fire his assis- tant. Tipon disagreed because he found the assistant vital to com- pleting safety audits and oversee- ing 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 dis- missed on Sept. 24, leaving Tipon the only corporate employee left in Edmonton and solely respon- sible for processing workers' com- pensation claims and co-ordinat- ing COR for the eight branches. In late fall 2014, the Manufac- turers' Health and Safety Asso- ciation (MHSA) — the external auditor performing the Dec. 31 COR audit — asked Tipon to pro- vide 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 sup- port 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 Philip- pines. 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 writ- ten confirmation that non-per- formance was the reason for his termination." e 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 en- tire 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 e court noted that Tipon's posi- tion involved a lot of responsibility and significant detail, and when the company expanded, that in- creased his workload. When Tipon became ill, work began to pile up, especially after Johns left. ough 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 "in- competence or deception" af- ter 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 com- plete the COR audit information by the extended deadline. ings 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 su- pervision and support provided by Johns made it virtually impossible for Tipon to complete his tasks. ese actions repudiated the em- ployment contract, said the court. "e 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 re- sponsibility for the state of things. is 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 Edmon- ton branch by eliminating the last employee there — created a "per- fect storm" that swept up Fleet Brake, said the court. Tipon was wrongfully dis- missed, said the court, in award- ing him six months' pay and bene- fits 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 dur- ing the notice period. e 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 & Ser- vice Ltd., 2017 CarswellAlta 412 (Alta. Prov. Ct.). Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employment- lawtoday.com. Rapid expansion and the economic contraction created "perfect storm."

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