Canadian Employment Law Today

6 | October 26, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 commendation from the program manager of residential services for his "positive con- tribution" as a "team player." Earlier in 2012, Elmi filed a grievance af- ter 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. Elmi believed some of his female co-workers were upset at him because of his grievance. e 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." e policy identified what constituted harassment, including behaviour or comments that create a "degrading offensive 'poisoned' work environment." On Dec. 23, 2012, the program man- ager received an email from a supervisor about a female shelter support worker, who claimed Elmi had on three occasions made "sexually suggestive and demeaning com- ments" about her body. e worker said she couldn't repeat what Elmi allegedly said be- cause it was shameful, but also reported he made obscene gestures to her. Complaints from five different female employees e program manager took this complaint seriously and immediately reassigned the female worker so she wouldn't be in con- tact with Elmi. Soon after, four more female support workers came forward with com- plaints about harassment from Elmi and the program manager met with them. e 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 ha- rassment 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 commenda- tions 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 Mus- lim who wouldn't consider such actions. Sexual annoyance e arbitrator noted that sexual harass- ment — 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 "sexu- al annoyance," which can be, according to previous jurisprudence, "all other conduct of sexual nature that demeans or humiliates the person addressed and in that way also creates an offensive work environment." e arbitrator also noted that the distinc- tion between sexual coercion and sexual annoyance was important because the lat- ter was less serious and more likely to war- rant discipline short of dismissal. In this case, the circumstances involved two different accounts regarding Elmi's conduct at work: the claims by the five fe- male support workers that Elmi made sex- ual comments and gestures to them, and Elmi's denial he did anything of the sort. e arbitrator 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. e arbitrator also found Elmi's claim that the women conspired against him to cause his termination because of his ear- lier 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 an- noyance and not coercion, and there were no witness es to each incident, the arbitra- tor 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 ex- tremely offensive sexual annoyance in the workplace." Since sexual annoyance isn't usually as serious as sexual coercion — though the ar- bitrator 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. However, Elmi consistently denied any misconduct and made unsubstantiated accusations of conspiracy and perjury at his co-workers. ese accusations made it unlikely that he would be able to work with them again and his failure to acknowledge any wrongdoing made it difficult to think he wouldn't con- tinue such behaviour, said the arbitrator. "is is particularly problematic in a work setting where a single male often works with a single female without direct supervision," said the arbitrator. "In these circumstances, the arbitrator cannot pre- dict with an acceptable degree of certainty that, if returned to the workforce after a lengthy suspension, Mr. Elmi would re- strain himself and work co-operatively with his female accusers." e arbitrator upheld the dismissal and dismissed Elmi's grievance. For more information see: • Ottawa (City) and Ottawa-Carleton Pub- lic Employees' Union, Local 503 (Elmi), Re, 2016 CarswellOnt 14134 (Ont. Arb.). rowing accusations back at accusers more serious « from HARASSER on page 1 WEBINARS Interested in learning about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as Ontario's new sexual violence and harassment legislation, compliance with the Temporary Foreign Worker Program, managing hidden disabilities in the workplace, and workplace harassment. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. Sexual annoyance was less serious than coercion but still created an offensive work environment

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