Persistent “sexual annoyance” of five female coworkers gets employee fired for cause, despite late reporting of incidents

A shelter support worker’s persistent pattern of sexual comments to five female coworkers justified his dismissal for cause, despite the coworkers’ failure to promptly report the incidents, a labour arbitrator has decided.

The coworkers complained that he had persistently commented about his sexual exploits, his body parts, the coworkers’ body parts, and how he wanted to have sex with certain coworkers and clients.  They also complained that he had made obscene sexual gestures.

The employee claimed that all of the allegations were false and that the five female coworkers had conspired to get him fired because they were upset about him winning a grievance that awarded him a certain job.  He noted that there had never been “hint” of him engaging in such conduct in his 25 years as a support worker and 7 years with this employer. He also noted that none of the coworkers reported the incidents at the time they allegedly happened.

The arbitrator stated that if there had been only one complainant, the case would have been different.  Here, however, there were five complainants.  Absent any evidence that the coworkers conspired to perjure themselves to get the employee fired, the arbitrator could not find that they had.

With respect to the coworkers’ failure to report the incidents promptly, the arbitrator stated:

“There were shortcomings in the evidence of the five female co-workers who testified against Mr. Elmi.  On the face, the most troubling was the failure of any of them to have reported Mr. Elmi’s alleged misconduct at the time.  However, given that it was sexual arrogance and not sexual coercion, given that none of these witnesses were aware at the time that the others were being subjected to the same abuse, given that there were no witnesses and given that there was no thought that Mr. Elmi would be terminated such that even if reported the female might again work unsupervised and alone with Mr. Elmi, I do not find it surprising that the alleged misconduct was not reported at the time.  In the final analysis I have been persuaded by the consistent and unshaken central assertion of these witnesses; that is, that Mr. Elmi engaged in persistent and particularly offensive sexual annoyance. When all the evidence is considered and weighed, I accept the central assertion of the five female bargaining unit co-workers who testified against Mr. Elmi. Accordingly, I reject Mr. Elmi’s denials and hereby find that Mr. Elmi engaged in persistent, pervasive, unwelcome and extremely offensive sexual annoyance in the workplace.”

As such, the arbitrator decided that the employer had just cause for dismissal. Since the employee was not remorseful, and had made a “blanket denial” of all of the allegations, it was not appropriate to reinstate him and give him another chance.

Ottawa (City) v Ottawa-Carleton Public Employees’ Union, Local 503, 2016 CanLII 59377 (ON LA)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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