Canadian Employment Law Today

April 26, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Overworked, sick employee wrongfully dismissed for not doing his job Work piled up for employee on modified work after company's rapid expansion was followed by staff cuts BY JEFFREY R. SMITH 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 cer- tification involved thorough safety audits performed both by the company and exter- nal auditors and maintaining ongoing safety records. Such certification provided cred- ibility for the company as a safety leader, dis- counted workers' compensation premiums, and certain government clients required it. ese duties required Tipon to travel fre- quently between branches. Tipon worked closely with one of the com- pany'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 auto- immune disease that affected his skin, spleen and gums. He suffered from sleep depriva- tion, low energy, and memory problems. He sometimes had to take time off and at times couldn't work a full week. e treatment in- volved 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 ap- pointing 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. e 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 of- fices and all came under Tipon's responsibility for safety matters while his assistant assumed responsibilities for the Edmonton office. However, the increased workload exacer- bated 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. e modified work arrangement contin- ued until September, when Tipon sent a gen- eral 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 to- wards the COR external audit — scheduled for Dec. 31 — for at least another month be- cause he was preoccupied with processing workers' compensation claims. However, Palma stuck with his decision and the as- sistant was dismissed on Sept. 24, leaving Tipon the only corporate employee left in Edmonton and solely responsible for pro- cessing workers' compensation claims and co-ordinating COR for all eight branches. In late fall 2014, the Manufacturers' Health and Safety Association (MHSA) — the ex- ternal 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 medi- cal report to support his request. Tipon re- sponded 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-perfor- mance was the reason for your termination." e company felt that Tipon should have no- tified 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. e court noted that Tipon's position in- volved a lot of responsibility and significant detail, and when the company expanded it increased his workload. When Tipon be- came ill, work began to pile up, especially after Johns, who mentored and helped him, left. ough 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. e court found Tipon didn't display any "incompetence or deception" after his assis- tant was fired. He made it clear he wouldn't be able to complete the COR audit by the deadline and the company's expansion com- bined with his illness was making his work- load untenable. ings were exacerbated by the fact his supervisor was in Calgary and didn't communicate much with him. ough the COR extension wasn't re- jected 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 as- sistance 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. ese actions repudiated the employment contract, the court said. "e employer was required to provide adequate supervision and support for Mr. Tipon, even if (he) was not 'asking' for help," said the court. e court also found Fleet Brake's stated reason for dismissal of "non-performance" was "clumsy and inaccurate" and took no responsibility. is was troublesome but not specifically directed at Tipon in bad faith that would warrant punitive damages. e 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. e court determined Tipon was wrong- fully dismissed and awarded him six months' pay and benefits in lieu of notice, minus the one month's pay the company already provid- ed and the amount Tipon earned in alternate employment for one-and-one-half months during the notice period. e total award was $28,709 — essentially three-and-one-half months' pay and six months of benefits. See Tipon v. Fleet Brake Parts & Service Ltd., 2017 CarswellAlta 412 (Alta. Prov. Ct.). Canadian HR Reporter, a Thomson Reuters business 2017 Canadian Employment Law Today | 3 Cases and Trends

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