Iligan v 348373 Alberta Inc., 2023 AHRC 70 (W Shim) is an Alberta Human Rights Commission decision where the complaint of discrimination on the basis of family status in employment was dismissed on the basis that the employer was not aware of the family status of the complainant at the time the complainant was given notice of termination of employment.
This case is an excellent example of the significance decision makers often place on corroborating evidence of a witness’ testimony.
Facts
The following were the facts summarized by the AHRC:
- The complainant Manuel Iligan was employed by Design Marketing. The ownership of Design Marketing changed hands at one point, everyone’s employment was terminated, but Mr. Iligan asked the new owner to stay on and he was given a position
- The complainant’s wife was pregnant when he was given the position with the new owner, and later when the complainant was given notice of termination. It was disputed whether the owner knew about the pregnancy
- The complainant’s wife suffered a fall in February, 2018 (some time after the new owner took over), and the complainant had to take a day off work to help her with an ultrasound appointment
- The owner’s evidence was that, on March 15, 2018, he verbally told the complainant of the termination and he typed out a termination letter – which provided 2 weeks’ working notice – in an email, but then printed it out and handed it to the complainant rather than sending it by email. The “March 15” date was typed into the email itself. The complainant disputed he was provided termination notice on March 15
- The complainant’s evidence was that he notified the owner that he wanted to take early parental leave on March 22. The owner disputed the complainant told him this
- The complainant’s employment was terminated on March 29
- The complainant filed an Alberta human rights complaint of discriminatory termination of employment on the basis of family status, under Sections 7 and 44(1)(f) of the Alberta Human Rights Act.
Analysis / Conclusion
The AHRC found that the complainant had a characteristic protected under the AHRA (Family Status), and that he had experienced an “adverse impact” (Termination of employment). The AHRC went on to consider the third step in the prima facie discrimination analysis, which in this case was whether the complainant’s family status was a factor in the employer’s decision to terminate his employment.
To determine if family status was a factor, the AHRC had to decide between (1) the complainant’s evidence that he was not given notice of termination on March 15 but did tell the new owner on March 22 that he wanted to take early parental leave, and (2) the new owner’s evidence that he did provide notice of termination on March 15 but was not advised of a desire for early parental leave on March 22.
As noted earlier, the owners’ evidence was that he typed the termination letter into an email, including the date of March 15, and then handed that to the complainant instead of sending it by email. AHRC Adjudicator W Shim commented that she found this “difficult to believe”. However, another witness of the employer provided evidence that the owner told him verbally on March 15 that he had terminated the complainant’s employment. The AHRC relied on this witness’ corroboration to tip the scales in favor of the respondent employer’s evidence that it had provided notice of termination on March 15, 2022, before the alleged request for early parental leave.
The AHRC found ultimately that the employer was not aware of the complainant’s wife’s pregnancy and potential parental leave at the time of the termination notice, and therefore, the protected ground (family status) was not a factor in the adverse impact (termination). In other words, the discrimination complaint failed.
My Take
First I want to be clear that this summary is not suggesting that knowledge of a protected ground automatically makes a termination decision discriminatory. However, lack of knowledge is a very strong piece of evidence against a termination decision being found to be discriminatory.
I summarized this case because I found the owner’s explanation about the termination email to be extremely hard to believe. If the owner would not have had a corroborating witness on the timing of the termination notice, I think the owner’s explanation about the email would have been enough to taint virtually all of his evidence in favor of the complainant.
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