Worker denied making sexual comments; tried to paint victims as liars
Annoying co-workers with inappropriate and sexually charged comments and gestures may not be as serious as sexual coercion, but denying them and accusing those co-workers of lying can make the misconduct worthy of dismissal.
Abshir Elmi was a temporary full-time shelter support worker for the City of Ottawa, hired in 2006. Combined with his experience before becoming employed with the city, he had 25 years as a support worker.
During this career, Elmi had no history of serious discipline or harassment complaints against him.
Elmi had a satisfactory performance review in 2010 with notes that his teamwork and collaboration were highly satisfactory. In November 2012, he received a letter of commendation from the program manager of residential services for his “positive contribution” as a “team player.”
Earlier in 2012, Elmi filed a grievance after he wasn’t awarded a full-time position because of the city’s policy of providing preferential placement to female support workers for positions working with female clients.
He reached a settlement where he was awarded such a position. But Elmi believed some of his female co-workers were upset at him because of his grievance.
The city had a workplace harassment policy that stated “all employees have a responsibility to respect the rights and dignity of co-workers and to report incidents of harassment in the workplace.”
The policy identified what constituted harassment, including behaviour or comments that create a “degrading offensive ‘poisoned’ work environment.”
On Dec. 23, 2012, the program manager received an email from a supervisor about a female shelter support worker who claimed Elmi had, on three occasions, made “sexually suggestive and demeaning comments” about her body.
The worker said she couldn’t repeat what Elmi allegedly said because it was shameful, but also reported he made obscene gestures to her.
Complaints from five different female employees
The program manager took this complaint seriously and immediately reassigned the female worker so she wouldn’t be in contact with Elmi. Soon after, four more female support workers came forward with complaints about harassment from Elmi and the program manager met with them.
The various complaints accused Elmi of making comments about the body parts of themselves and other female workers, having sex with them, grabbing himself, showing advertisements for sex toys and photos, and making comments about his own sexual organ.
None of the female workers reported Elmi’s behaviour to their supervisors at the time.
Elmi denied the allegations of sexual harassment against him, claiming the women were still angry with him because of his grievance and were conspiring to get him fired. He pointed to his long service without any previous discipline and his commendations for being a team player as evidence he wasn’t the type of person to harass people.
He also pointed out he was a devout Muslim who wouldn’t consider such actions.
Sexual annoyance
Arbitrator Kevin Burkett noted that sexual harassment — in the context of both human rights legislation and occupational health and safety legislation — isn’t limited to sexual assault or requests for sexual favours. It can also include behaviour referred to as “sexual annoyance,” which can be, according to previous jurisprudence, “all other conduct of sexual nature that demeans or humiliates the person address and in that way also creates an offensive work environment.”
Burkett also noted that the distinction between sexual coercion and sexual annoyance was important because the latter was less serious and more likely to warrant discipline short of dismissal.
In this case, the circumstances involved two different accounts regarding Elmi’s conduct at work: The claims by the five female support workers that Elmi made sexual comments and gestures to them, and Elmi’s denial he did anything of the sort.
Burkett found that it would have been difficult to determine which side was more believable if it had been one against another, but the fact five co-workers came forward with similar stories cast Elmi in a worse light.
The arbitrator also found Elmi’s claim that the women conspired against him to cause his termination because of his earlier grievance was highly unlikely, as they would be perjuring themselves and would have had to have each made the decision to do so independently.
Since it was sexual annoyance and not coercion, and there were no witness to each incident, the arbitrator didn’t find it surprising that they didn’t initially report Elmi’s behaviour.
Ultimately, the evidence pointed to Elmi being guilty of “persistent, pervasive, unwelcome and extremely offensive sexual annoyance in the workplace,” said Burkett.
Since sexual annoyance isn’t often as serious as sexual coercion — though Burkett noted Elmi’s behaviour was at the more serious level of the spectrum — and
Elmi had a good record, suspension might have been appropriate discipline.
Denials, accusations
However, Elmi consistently denied any misconduct and made unsubstantiated accusations of conspiracy and perjury at his co-workers.
These accusations made it unlikely he would be able to work with them again and his failure to acknowledge any wrongdoing made it difficult to think he wouldn’t continue such behaviour, said Burkett.
“This is particularly problematic in a work setting where a single male often works with a single female without direct supervisor,” he said.
“In these circumstances, the arbitrator cannot predict with an acceptable degree of certainty that, if returned to the workforce after a lengthy suspension, Mr. Elmi would restrain himself and work co-operatively with his female accusers.”
Burkett upheld the dismissal and dismissed Elmi’s grievance.
For more information see:
• Ottawa (City) and Ottawa-Carleton Public Employees’ Union, Local 503 (Elmi), Re, 2016 CarswellOnt 14134 (Ont. Arb.).
