McPherson v 557466 Alberta Ltd. o/a LDV Pizza Bar, 2023 ARHC 36 (Oviatt) is a new Alberta human rights decision where an server at a pizza restaurant was found to have been discriminated against on the basis of pregnancy (gender) under Section 7 of the Alberta Human Rights Act.
This case is a good example of how the tribunal has often found discrimination in pregnancy cases, and the case is really illustrative of how credibility contests play out in litigation generally.
Facts
The following are the pertinent facts summarized by the Alberta Human Rights Tribunal:
- The complainant Sherry McPherson was an employee of LDV Pizza Bar, working as a server part-time for about 10 months
- The complainant disclosed that she was pregnant to her boss in mid-March, 2014
- Soon following disclosure of her pregnancy, her weekly hours were reduced from an average of 23.27 hours per week to an average of 17.5 hours per week
- About a month and a half after disclosing her pregnancy, the complainant was scheduled for significantly more lunch shifts than she had previously (these are less desirable). The employer’s explanation for this was that they were starting to build a lunch business in advance of the upcoming FIFA world cup at the time
- The complainant did not end up working those lunch shifts. The complainant and employer had a phonecall where the complainant was unhappy about the scheduled lunch shifts and they were discussing availability. The employer terminated her employment on the phone
- The complainant testified that she asked the employer if he was firing her due to pregnancy and that he said he could not have her in the restaurant with how far along the pregnancy she was, because he could not raise his voice to her in that condition
- The employer disputed having said that the termination was related to pregnancy. He said he terminated because she was being unreasonable about the schedule
- The complainant had filed an employment standards complaint in addition to the human rights claim. Employment Standards Officer Hero Azar was called a witness for the complainant in the human rights process and stated that the employer had at one point stated that the termination was related to the appearance of pregnancy. The employer denied that conversation with Ms. Azar occurred
Analysis / Conclusion
There were important differences in the facts as stated by the complainant and as stated by the employer, so credibility was of central importance in this case. Chief of Commission and Tribunals Kathryn Oviatt found the complainant to be more credible than the employer, and therefore preferred her version of events, for several reasons, including:
[43] I agree with the Director that the complainant’s recollections of key events were clear, internally consistent, and specific. She did not embellish or tailor her evidence and gave specific examples of words used. Her version of the termination phone call was also consistent with the version of events she described in both the Complaint form for this Complaint and in her Employment Standards complaint, both of which were made closer in time to the events.
[44] The complainant’s version was also externally supported by the Employment Standards Officer, who was forthright and compelling. The Employment Standards Officer had no motivation to tailor her evidence. She was consistent and transparent in her description of how seriously she took her role, including in being neutral. […]
[45] The respondent argued that the Employment Standards Officer must have a conflict of interest because she must have visited the restaurant, met the complainant, and therefore conspired with the complainant in this Complaint. These suggestions were speculative and not born out by the evidence. In short, they were both unsupported and implausible. The Employment Standards Officer was direct, assertive, and transparent. She was adamant about her evidence, but also professional and clear. Her evidence was consistent with her email correspondence around the time and with the statutory process she was applying. Overall her version of events was consistent with what likely happened.
Preferring the complainant’s version of events led the AHRC to conclude that pregnancy was a factor in her termination of employment.
The AHRC also found that pregnancy was a factor in the reduction in average shift hours, because the timing of the reduction was right after she disclosed her pregnancy.
However, regarding the schedule change (adding lunch shifts), the Human Rights Tribunal concluded that there was not sufficient evidence that this was related to the complainant’s pregnancy.
Ultimately, the Tribunal awarded the complainant $25,000 in general damages for pain and suffering and her lost wages from the time of termination of employment until when her baby was born. The basis of the general damages award was: that termination of employment is an objectively serious human rights violation, that during pregnancy an employee is especially vulnerable, and that the complainant suffered emotionally as a result of the termination.
My Take
When I first read this case, the moment I saw that the employer denied ever having a conversation with Employment Standards Officer Hero Azar, I knew the result was going to be bad for the employer. In a credibility contest, having a corroborating witness that has no interest in the outcome of the case and is clearly neutral is very difficult for the other party to overcome. Additionally, I have personally dealt with Ms. Azar in a case of my own and I am confident she would present as an honest and credible witness.
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