‘Innocuous actions’ of boss towards temp worker at Alberta ministry wasn’t sexual harassment: Commission

Illustration: HR Law Canada

A contract worker who alleged she was sexually harassed by her boss at Alberta’s Ministry of Seniors, Community and Social Services has had her claim dismissed.

The woman, who worked through staffing agency Elite Employment Group, had a short-term contract in the office of the Appeals Secretariat in 2018.

She alleged that, during her time of employment, the harassment created a toxic and poisoned work environment. To make matters worse, she said her complaint led to further harassing behaviour by her superior.

She said the ministry discriminated against her when it ended her assignment early shortly after she made her allegations. Damages of $15,000 for injury to her dignity were sought, along with $4,200 for loss of income.

The ministry denied the discrimination complaint. It said the woman was on a short-term contract that was set to end after a competition for the position took place and it became filled. It also noted that while she accused her superior of sexual harassment, she declined to file a formal complaint.

The sexual harassment allegation was resolved when it ensured she no longer worked with that boss, it said, and her contract ended shortly after when a permanent hire was made.

Appeals assistant job

The woman began working as an appeals assistant in mid-August 2018. The employer posted a job competition to fill a permanent appeals assistant role in the summer of 2018, and the competition ended on Aug. 9, 2018.

The complainant did not apply for the position. She began her short-term work on Aug. 20, 2018. On Oct. 10, 2018, a candidate verbally accepted the appeals assistant position. This was announced to the team, including the complainant, at a monthly meeting on Oct. 11, 2018.

After this meeting, she was told that once the signed offer letter was received, it would confirm a start date and provide her with one week notice of termination of her contract.

On Oct. 19, 2018, she accused her superior of sexual harassment. The accused immediately brought the allegation to the employer’s attention. It took steps to address the issue, including meeting with her to gather more information.

At the end of the meeting, an arrangement was worked out where she wouldn’t have to work with him anymore. She was satisficed with this arrangement, which continued until her position ended.

On Oct. 26, 2018, both the complainant and Elite were given notice that her last day of work would be Nov. 2, 2018. It later decided to end her employment one day earlier, but paid her until Nov. 2.

Inappropriate greetings, physical contact in photocopy room

The complainant said her boss subjected her to inappropriate greetings, where he would look her up and down in a manner that made her feel uncomfortable. He also said hello in a sexualized tone of voice, she said.

On Oct. 5, 2018, she said he approached her from behind while she was in a photocopy room and pressed himself up against her behind. She also said he invited her to follow him on Twitter; followed her in a park; deliberately bumped into her; and admitted to discriminatory conduct and apologized when confronted, among other things.

The boss denied every allegation, and was “firm in this denial even under cross-examination,” the Alberta Human Rights Commission said.

“(He) testified that his greeting to the complainant was not sexualized. He denied looking the complainant up and down. He testified that his usual morning routine was to greet everyone who was in the office at the time and that he greeted the complainant the same way he greeted all the other staff. He further testified that other than saying hello, he did not socialize with the complainant,” it said.

The commission preferred his testimony, noting that the sexualized greeting would have been evident to anyone present in the workplace.

“While not every act of sexual harassment is done in public, this particular one is alleged to have happened in the morning ritual,” it said. “No other staff person in the open concept workplace was brought forward to corroborate this allegation.”

It also dismissed the allegation of the incident in the photocopy room.

“There were inconsistencies in the complainant’s account of events, particularly regarding her account of (his) action on that day. Initially it was rubbing, then it was brushing, then it was pressing,” it said. “The difference between (him) rubbing or pressing his body against the complainant, as opposed to brushing past her is substantial. Yet the complainant’s testimony changed over time.”

Termination of contract

It also addressed the issue of the termination of her contract, ruling it was not the result of the complaint. The commission pointed to the timing of events in reaching this conclusion.

It said she was given notice that her position was coming to an end before she made the allegation. The employer did not dispute that she was a good worker, but it only required her in the position on a temporary basis until the role was filled by a permanent worker.

“I find that there is sufficient evidence to show that the complainant’s temporary work assignment only ended because the respondent’s permanent Appeals Assistant’s position was filled,” it said. “The complainant has failed to establish that the ending of her employment on November 2, 2018 was because of the complainant’s allegation of sexual harassment.”

Sent home with pay one-day early

It also addressed the fact her employment was ended one day early. The complainant said this was because of the sexual harassment issue, but the employer said that played no role in its decision.

Instead, the employer cited four reasons for the decision:

  • the complainant was uncomfortable
  • workflow had reduced because the new permanent Appeals Assistant was now working
  • there was no manager present to monitor and deal with the HR matter that had arisen
  • there were health and safety issues, given her confrontation of her new direct supervisor (a female, not the one who harassed her.)

On the last point, the supervisor said the complainant ignored her greetings on Nov. 1 and was “quite stiff” towards her that morning, the commission said.

She further testified that the complainant then came to confront her at her desk and told her she was not allowed to say hello to her until her contract was over because she was colluding with the boss she claimed harassed her.

The complainant went back to her desk and sent an instant message to the same effect to the supervisor. The supervisor, seeing that the woman was “spitting mad,” stayed in her cubicle for the rest of the morning to avoid aggravating the situation as she was afraid and felt unsafe.

The complainant admitted in cross examination that she was assertive, forceful and angry when she confronted the supervisor.

The ruling

The commission noted the allegations of sexual harassment appeared to be based on her interpretation of innocuous actions, such as arriving at a door at the same time or saying hello in the morning.

“While sexual harassment is not always witnessed by others, there must be some allegations that conduct of a sexual nature has occurred,” it said. “The complainant’s allegations amount to bare assertions of instances that occurred in the workplace, with no link to sexual conduct except her own assessment.”

The complainant failed to establish that she was sexually harassed during her employment, and also failed to establish the termination of her conduct had anything to do with the allegation.

The complaint was dismissed.

For more information, see Omeltchenko v His Majesty the King in Right of Alberta (Seniors, Community, and Social Services), 2023 AHRC 18 (CanLII).