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
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
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.
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