A Nova Scotia arbitrator has upheld the dismissal of a worker who unsettled many of his colleagues with too much self-love in the office washroom.
The worker was employed as an aircraft log controller at I.M.P. Group, a company that operates aircraft repair, maintenance and upgrade facilities at Halifax Stanfield International Airport. Hired in 2000, the worker was stationed at a hangar space that could accommodate several aircraft and a three-storey office structure.
I.M.P. Group had a code of business conduct and a policy and procedures manual that made it clear the company expected employees “to conduct themselves with honesty and integrity, and to treat others with fairness, dignity and respect” and prohibited harassment.
Harassment was defined as “any improper conduct that is directed at and offensive to another employee, by a person who knew or ought reasonably to have known would be unwelcome.” The worker had a copy of the code and had acknowledged he understood harassment included embarrassing others.
Shortly after the employee started working at I.M.P. Group, he began masturbating in the toilet stalls if no one else was in a stall beside him. It was a habit he had developed when he was in the military, where there was a lack of privacy on tours of duty.
The worker later testified he didn’t make any noises when he did this, but he sometimes watched pornography on his smartphone. He said no one ever told him it bothered them and should stop.
He didn’t believe it affected his work and I.M.P. Group had no problems with his work performance.
However, in January 2016, two employees asked a production manager for guidance on how to deal with someone masturbating in the washroom. They both identified the worker.
The complaint reached the vice-president of HR and the manager of production control, who met with the worker about “unusual noises” he had made in the washroom and inquired if there was a medical reason. The worker felt it was a private issue and didn’t say anything about it.
After the meeting, a union shop steward talked to the worker about “rumours about inappropriate noises in the bathroom” brought to him from other union members. The worker denied doing anything wrong but mentioned he was going to seek medical help.
The worker stopped his bathroom activities for a while, but then resumed them while trying to be “more cautious.” By April 2018, more I.M.P. employees complained about “a male masturbating in the bathroom… for a few months now” that had became “more frequent and brazen” as time passed.
I.M.P. Group conducted an investigation that included interviews with several employees. Some reported hearing heavy breathing, moaning, and moans likely coming from pornographic videos on the smartphone.
Some employees said they refused to use the washroom because of what they had heard going on inside.
After the investigation, the VP of HR and senior manager of HR met with the worker and a union steward.
Management explained the investigation had determined the worker was the person masturbating in the washroom and the worker admitted the same.
He acknowledged he had been told his actions were inappropriate, but he couldn’t explain why it was still happening.
Management asked him if there was anything it should take into consideration or need to know, but the worker shook his head. He later testified he felt what he did “behind locked doors was my business and no one else’s.” The worker was prepared to clean out his desk, but the meeting concluded with management telling the worker to go home pending a decision by the company on how to proceed.
The worker felt stressed about the situation, as he considered himself a private person and was uncomfortable with knowing co-workers had complained about his behaviour. He contacted the company’s employee assistance program for referral to a counsellor. The worker didn’t believe he had a sex addiction, but told the counsellor he had a problem.
The counsellor thought the worker could have a sex addiction, though the counsellor wasn’t licensed to diagnose psychological conditions.
The counsellor suggested the worker try to distract himself from the urge to masturbate or, failing that, “seek out a private place where there was a reasonable expectation of privacy to perform the activity and then return to work as soon as possible.”
On April 27, 2018, I.M.P. Group terminated the worker’s employment for breaching the company’s harassment policy and code of conduct.
The union challenged this, arguing management’s warning in 2016 wasn’t specific enough, leading to the worker’s belief he was being warned for “in appropriate noise.”
The union also argued the company didn’t follow progressive discipline, jumping straight to dismissal for which there wasn’t sufficient cause.
The arbitrator found that when management initially discussed the matter with the worker in January 2016, “common sense” dictated that the worker knew they were talking about his masturbation in the washroom, not just unusual noises.
“I am satisfied then that the (worker) knew at this point that the employer had become aware of his practice; that it had become aware of it because other employees had heard it happening and were disturbed by it; that if there was some medical reason for such conduct he should do something about it; and that it was inappropriate and should not be continued,” said the arbitrator.
The arbitrator applied the same reasoning to the worker’s discussion with the union steward around the same time.
The steward avoided mentioning masturbation directly but discussed unusual noises and activity; he and the worker “both knew exactly what was being discussed” and it should stop. However, the worker soon took up the activity again, despite the fact he knew it was inappropriate, said the arbitrator.
When management met with the worker again in April 2018, there was no doubt the problem was the worker masturbating in the washroom, said the arbitrator. The worker admitted he was doing it and had been told not to previously, and he knew it was inappropriate.
The arbitrator also noted the worker said he didn’t make any sounds during his washroom sojourns, but this obviously wasn’t the case since several co-workers complained about the noise. Even if he wasn’t initially aware of the noise, he was after the January 2016 meeting.
The arbitrator found that the worker partook in an activity that he knew, or ought to have known, would cause embarrassment and distress to his co-workers by masturbating in close proximity to them, noting that sexual activity is normally conducted in private — both visually and auditorily.
The worker had been warned that masturbating in the office washroom wasn’t actually in private because co-workers could hear him, and continuing to do so qualified as “behaviour, often recurrent in nature, which negates an individual’s dignity and the respect to which they are entitled because the behaviour is offensive, embarrassing, or humiliating,” as stated by the company’s policy.
As for the suggestion the worker suffered from sex addiction that was a disability to be accommodated, the arbitrator said it wasn’t a condition recognized by “any accredited professional governing body,” and the worker’s job performance wasn’t affected in any way — so he didn’t require accommodation.
Though the January 2016 meeting didn’t result in any discipline, it served the purpose of informing the worker that his activity was inappropriate and should stop — a part of progressive discipline. Therefore, the arbitrator found that the worker continued his misconduct with knowledge of the company’s expectations and potential consequences for continued misconduct.
Since the worker was prepared to clean out his desk during the April 2018 meeting, it was clear he appreciated the seriousness of his misconduct, said the arbitrator, who determined I.M.P. Group had just cause to dismiss the worker.
For more information, see:
• UNIFOR, Local 2215 and I.M.P. Group Limited (Aerospace Division) (May 15, 2019), A.M. Richardson, QC – Arb. (N.S. Arb.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.
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