Canadian Labour Reporter - sample

Elmi had a satisfactory perfor- mance review in 2010 with notes that his teamwork and collabora- tion were highly satisfactory. In November 2012, he received a letter of commendation from the program manager of residential services for his "positive contribu- tion" 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 preferen- tial 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 fe- male co-workers were upset at him because of his grievance. The city had a workplace ha- rassment policy that stated "all employees have a responsibility to respect the rights and dignity of co-workers and to report inci- dents of harassment in the work- place." The policy identified what constituted harassment, includ- ing behaviour or comments that create a "degrading offensive 'poi- soned' work environment." On Dec. 23, 2012, the program manager received an email from a supervisor about a female shel- ter 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 ges- tures to her. Complaints from five different female employees The program manager took this complaint seriously and immedi- ately reassigned the female work- er 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 ac- cused 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 com- ments about his own sexual organ. None of the female workers re- ported Elmi's behaviour to their supervisors at the time. Elmi denied the allegations of sexual harassment against him, claiming the women were still an- gry with him because of his griev- ance and were conspiring to get him fired. He pointed to his long service without any previous dis- cipline 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 con- sider such actions. Sexual annoyance Arbitrator Kevin Burkett noted that sexual harassment — in the context of both human rights leg- islation and occupational health and safety legislation — isn't lim- ited to sexual assault or requests for sexual favours. It can also in- clude behaviour referred to as "sexual annoyance," which can be, according to previous jurispru- dence, "all other conduct of sexual nature that demeans or humiliates the person address and in that way also creates an offensive work en- vironment." Burkett also noted that the dis- tinction between sexual coercion and sexual annoyance was impor- tant 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 sup- port workers that Elmi made sexu- al 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 termina- tion because of his earlier griev- ance was highly unlikely, as they would be perjuring themselves and would have had to have each made the decision to do so inde- pendently. Since it was sexual annoyance and not coercion, and there were no witness to each incident, the arbitrator didn't find it surpris- ing that they didn't initially report Elmi's behaviour. Ultimately, the evidence point- ed to Elmi being guilty of "persis- tent, pervasive, unwelcome and extremely offensive sexual annoy- ance in the workplace," said Bur- kett. Since sexual annoyance isn't often as serious as sexual coer- cion — though Burkett noted El- mi's behaviour was at the more se- rious level of the spectrum — and Elmi had a good record, suspen- sion might have been appropriate discipline. Denials, accusations However, Elmi consistently de- nied any misconduct and made unsubstantiated accusations of conspiracy and perjury at his co- workers. These accusations made it un- likely he would be able to work with them again and his failure to acknowledge any wrongdo- ing made it difficult to think he wouldn't continue such behav- iour, said Burkett. "This is particularly problemat- ic in a work setting where a single male often works with a single fe- male without direct supervisor," he said. "In these circumstances, the ar- bitrator cannot predict with an ac- ceptable 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 ac- cusers." Burkett upheld the dismissal and dismissed Elmi's grievance. For more information see: • Ottawa (City) and Ottawa-Car- leton Public Employees' Union, Local 503 (Elmi), Re, 2016 Car- swellOnt 14134 (Ont. Arb.). 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < Harasser pg. 1 Five women complained about ongoing 'sexual annoyance' Photo: David P. Lewis (Shutterstock)

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