Jensen v Thermo King Western Inc, 2021 ABQB 593

Court of Queen’s Bench of Alberta Citation: Jensen v Thermo King Western Inc, 2021 ABQB 593 Date: 20210727 Docket: 1603 04002 Registry: Edmonton Between: Arny Jensen Plaintiff - and - Thermo King Western Inc Defendant _______________________________________________________ Reasons for Decision of W.S. Schlosser , Master of the Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is the Plaintiff’s application for

Summary Judgment in a wrongful dismissal lawsuit. The state of the evidence does not permit this case to be resolved at this time. [ 2 ] The Plaintiff worked at Thermo King since 1978. He was fired in December, 2015 without notice. Mr. Jensen was 65 and employed as a shop foreman whose main responsibility was vehicle-mounted air compressor service and repair. Performance [ 3 ] Mr. Yewchuk, the president of Thermo King says: … 6. At this time, Mr. Jensen was Supervisor in the Van Body and Service and Repair Divisions. These areas were responsible for 60 – 70% of the revenue for Thermo King. Mr.

Jensen was responsible for quality control, which meant that it was his job to ensure work was being properly completed before products were returned and delivered to customers. At this time, the economy was in a recession, and

there was increased competition within this industry that was affecting the profitability of the division. There were continuous issues with repairs and services being returned to Thermo King because of inadequate and incomplete work, which was Mr. Jensen’s area of responsibility as quality control manager. This was costing the company an estimated 5 – 10 thousand dollars per month, not including the potential lost revenue from dissatisfied customers. The meeting with Mr.

Jensen was to ensure that he was completely aware of his responsibilities and the expectations of him moving forward, and that if his performance continued his employment was in jeopardy. … [ 4 ] Thermo King says that Mr. Jensen was a chronic underperformer and shirked his job responsibilities. Mr. Yewchuk said that he raised these issues on multiple occasions, both in writing and in person, but Mr. Jensen did not mend his ways and had to go. There is conflicting evidence about the written warnings, in particular, a detailed written performance review. There is no written record of the multiple warnings and Mr.

Jensen denies them. [ 5 ] Mr. Jensen correctly states that the law requires an employee to be given clear and unequivocal warnings about performance, a reasonable opportunity to improve and that there must be a failure to improve that impairs the business of the employer before an employee can be terminated for cause. [ 6 ] Mr. Moisan, the VP of Finance of Thermo King, swears: … 3. The Plaintiff was terminated from the company, with cause.

As stated in the termination letter given to the Plaintiff, he was dismissed for frequent derogatory comments made to employees of TK and customers, which included management and subordinates to the Plaintiff, racist remarks made to and about TK employees and customers, frequently failing to attend daily required meetings, frequently not responding to requests from management, frequently not following through with instructions and directions, and frequently not communicating with team members. 4.

This information has also been confirmed through TK employees, namely John Yeomans, current VP of Sales and Marketing, and Tim Yewchuk, current CEO of TK. These individuals provided information that the concerns over the Plaintiff’s actions were ongoing, and frequent. The quality of the Plaintiff’s work suffered, and was subject to frequent errors. These issues were addressed repeatedly with the Plaintiff, but he took no steps to correct his behaviour.

The Plaintiff would not follow through with the suggestions, directions and instructions from management to address these issues, and when it became apparent that this was not going to change, the decision was made to terminate the Plaintiff’s employment. … [ 7 ] Mr. Yeomans, VP of Sales and Marketing, says: … 3. The Plaintiff was terminated from the company, with cause.

I personally witnessed the Plaintiff making derogatory comments to and about employees of TK and customers, which included management and subordinates to the Plaintiff, racist remarks made to and about TK employees and customers, frequently failing to attend daily required meetings, frequently not responding to requests from management, frequently not following through with instructions and directions, and frequently not communicating with team members. 4. These actions from the Plaintiff were ongoing, and frequent. The quality of the Plaintiff’s work suffered, and was subject to frequent errors.

He would not follow through on requests and instructions regarding accountability. The Plaintiff was very difficult to work with. These issues were addressed repeatedly with the Plaintiff, but he took no steps to correct his behaviour. The Plaintiff would not follow through with the suggestions, directions and instructions from management to address these issues, and when it became apparent that this was not going to change, the decision was made to terminate the Plaintiff’s employment. 5. Working with the Plaintiff was difficult. I personally interacted with the Plaintiff on a daily basis.

The Plaintiff refused or failed to follow through with company procedures, was at times difficult to find or locate, and was difficult to communicate with. His attitude was poor, he was resistant to change, and his frequent comments and behaviour made for a poor work environment. This behaviour affected those above and below the Plaintiff. 6. The Plaintiff’s actions also had a financial consequence for the company. His failure to follow procedure resulted on work not being completed in a timely fashion, late delivery to clients, and inefficiencies in manufacturing.

This affected all employees, as his inability to cooperate and work with team members made everyone’s work and job satisfaction suffer. … [ 8 ] There is conflicting evidence about the terms and the nature of the warnings given to Mr. Jensen. Mr. Jensen says he did not get the performance review letter. If it was provided, this would have been 1 ½ - 3 years before termination. Thermo King was a very poor record keeper. There is no documentation regarding the meetings and warnings referred to.

The receipt, timing, adequacy of warnings and progressive disciplinary measures are all in issue and cannot be resolved on the factual record now before the Court. Racist and other offensive remarks [ 9 ] There are much more serious allegations about Mr. Jensen’s conduct. Thermo King says that Mr. Jensen was given to racial epithets, derogatory and offensive slurs to describe customers and his fellow employees. Instances of this are summed up in Thermo King’s materials and I will not repeat them here.

[ 10 ] It is difficult to overstate the effect of this type of allegation. [ 11 ] In my view, this type of conduct falls into a category that is so obviously unacceptable that no warning is necessary. It is the verbal equivalent of stealing from the till. A person who shows such ugly contempt for customers and his fellow employees is not fit for the job he was hired to do. This is not one of those circumstances where you have to explain something to an employee who might not know any better.

In this day and age this is not something that has to be spelled out. [ 12 ] If the facts set out in Thermo King’s affidavits and defense brief were proved, not only would the Court find that Mr. Jensen was fired for cause, it would fire his lawsuit as well. [ 13 ] However, this is the Plaintiff’s

Summary Judgment application. Mr. Jensen unequivocally denies the wrongdoing set out by Thermo King’s officers, swearing: … 3.

In response to Paragraph 3 of Lee Moisan’s Affidavit sworn on January 31, 2020 and Paragraph 3 of John Yeomans’ Affidavit sworn on January 31, 2020, I deny: a. making derogatory comments to Thermo King’s employees and customers; b. making racist remarks to and about Thermo King’s employees and customers; c. that I frequently failed to attend daily meetings; d. that I frequently failed to respond to management’s requests; e. that I frequently failed to follow through with instructions and directions; and f. that I frequently failed to communicate with team members. [ 14 ] Somebody is being less than completely truthful.

The law does not permit the Court to say who based on affidavit evidence. [ 15 ] The timing of these slurs is not disclosed in the materials and it is impossible to say whether this was the conduct that precipitated Mr. Jensen’s termination because we do not know when it happened. [ 16 ] Mr. Jensen denies making these remarks and Thermo King does not supply any dates or particulars, as would be expected with allegations as serious as these. They may well have tolerated such behaviour, if it occurred at all. The difficulty is that this cannot be decided on the record now before the Court.

As it now stands, the prejudicial value of the evidence far outweighs its probative value. [ 17 ] The conflicts in the evidence and the issue of credibility means that this case must go to trial, potentially a

summary trial or the trial of an issue, but it cannot be determined as it stands. [ 18 ] Mr. Jensen was terminated when he was 65 and with no evidence about his retirement plans, a quantum determination is out of reach as well. [ 19 ] The application is dismissed. No costs. Heard on the 23 rd day of June, 2021. Dated at the City of Edmonton, Alberta this 27 th day of July, 2021. W.S. Schlosser M.C.Q.B.A. Appearances: Ryan Henriques Prowse Chowne LLP for the Plaintiff

Brandon Tralenberg Davidson Gregory Tralenberg for the Defendant