Human Rights Office

Human Rights Office
Human Rights Office

The Ottawa-Carleton Public Employees’ Union, Local 503 v. The City of Ottawa, 2016 

Summary:

In this case, the applicant, Mr. Abshir Elmi, was employed as a temporary full-time shelter support worker with seven years of experience. In March of 2013, Mr. Elmi’s employment was terminated for a “pattern of unwanted and offensive sexual comment involving five female co-workers” (p. 1). According to his female co-workers Mr. Elmi made sexualized comments about them, other female staff members and clients within the shelter. The central issue in this case is the credibility of Mr. Elmi and the five female co-workers. Mr. Elmi denies that any of the incidences involving unwanted and offensive sexual comments occurred. Mr. Elmi maintains that the five female co-workers conspired against him as retaliation for a grievance he filed and won regarding a full-time temporary position. Mr. Elmi maintains that these accusations were motivated by revenge and dissatisfaction. In this case, it was established that Mr. Elmi’s co-workers testimony was more credible than his own and that the fact that none of the incidents were documented through the formal sexual harassment policy and procedure was not a barrier to making this finding. 

Question to be Determined:

            1. Does the evidence support a finding of sexual harassment by Mr. Elmi?

            2. Is the penalty of termination of employment just and reasonable in all the        circumstances?

Findings:

            1. Does the evidence support a finding of sexual harassment by Mr. Elmi?

            YES

            2. Is the penalty of termination of employment just and reasonable in all the        circumstances?

            YES

Reasoning:

  1. Does the evidence support a finding of sexual harassment by Mr. Elmi?

Given the number of female co-workers that came forward with similar accounts of Mr. Elmi’s behaviour it was determined that there was enough evidence to support a finding of sexual harassment by Mr. Elmi.

However, this is not a case where a single female has testified against Mr. Elmi. Rather, five female support co-workers (fellow bargaining unit members) have come forward to testify under oath such that, to accept Mr. Elmi's evidence in preference to theirs, I would have to conclude that each of these fellow bargaining unit co-workers came forward independently to give false testimony or, consistent with Mr. Elmi's belief, that they conspired to come forward as a group to give false testimony in order to cause his         termination absent a credible reason for doing so (of which there is none here) and absent any evidence that they did in fact do so, it cannot be found that these five female bargaining unit co-workers conspired to perjure themselves for the purpose of causing Mr. Elmi's termination. Further, it is highly unlikely that five bargaining unit co-workers would each independently decide to commit perjury. It is against this backdrop that their evidence must be considered (p. 14-15).

Addressing the issue of why none of Mr. Elmi’s co-workers utilized the formal sexual harassment policy and procedure it was stated that,

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 (p. 15).

 

2. Is the penalty of termination of employment just and reasonable in all the circumstances?

In this case it was determined that the penalty of termination of employment was just and reasonable given Mr. Elmi’s continued denial of the accusations. The prospect of a lengthy suspension and then return to work did not seem feasible in this context.

Mr. Elmi, consistent with his blanket denial, has never acknowledged his wrongdoing nor apologized to his female co-workers. Indeed, having accused these females of conspiracy to perjure themselves for the purpose of causing his termination, it is difficult to think that he could work cooperatively with them if reinstated. This is particularly problematic in a work setting where a single male often works with a single female without direct supervision. 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 cooperatively with his female accusers (p. 16).