The case of Omeltchenko v His Majesty the King in Right of Alberta, 2023 AHRC 18 vide Order dated 9th February 2023 sheds light on the importance of credibility assessment, where in certain cases the burden of probability shifts from the Respondent to the Complainant. This particular case takes into account the alleged acts that presumably would have been witnessed by co-workers, and the testimony of witnesses would be essential.
Nevertheless, it remains crucial to recognize that an inconsistent testimony has the potential to significantly impact the outcome of a case.
Facts
In 2018, the Complainant, X, a contract worker, was employed as a short-term employee in the Community and Social Services Department of the Government of Alberta, Respondent Y. According to X, she was sexually harassed by her supervisor, who used a sexual undertone while greeting her. Additionally, it was alleged by the complainant that on one occasion, her supervisor pressed against her back. When Y became aware of such behaviour, X was not given any work involving the supervisor.
However, X alleged that her contract was terminated soon after she had made allegations of sexual assault.
Issues
- Whether there is a prima facie case of sexual harassment & discrimination?
- If a prima facie case exists, whether X was subjected to any undue hardships by Y?
Law
The complaint was filed under section 7 of the Alberta Human Rights Act (the Act) alleging discrimination in her employment on the basis of gender.
Tribunals Reasoning
Upon analysing the allegations and evidence, the judge determined that the alleged sexual misconduct did not occur. Instead, the tribunal shifted the burden towards analysing X’s credibility, as the witnesses had given a fundamentally different testimony from X’s testimony.
The reasoning given by the presiding judge was as such:
- That the alleged sexualised greetings would have been evident to everyone in the workplace.
- While X complained that such greetings occurred in the morning in the office lobby, it was found that the alleged act was not committed in isolation.
- However, the complainant failed to corroborate her allegation. The witnesses of Y also denied witnessing any such incident.
- Relying on various cases, the tribunal found a mere hello would not amount to sexual harassment as per the law.
- The judge pointed out the inconsistency in X’s testimony with the testimony given by other witnesses.
Judgement
The Tribunal held that X failed to establish a prima facie case that she was subjected to any sexual harassment. It was also held that X was not prevented from lodging a complaint against Y.
Additionally, it was ruled out that X’s employment was not terminated because of the complaint. It was ruled that X was only hired until the time that the ongoing recruitment for a permanent position was completed, and X failed to prove there was discrimination against her on the grounds of gender.
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