Worker’s washroom activities not private enough to avoid making co-workers uncomfortable, embarrassed; Breach of employer’s harassment policy, code of conduct.
Background
Certain behaviours are best left to be done privately. If they’re not, they can make people uncomfortable. And if an individual is making people uncomfortable or embarrassed at work, that can constitute harassment -- and there is very little privacy in an office environment.
The government may not have any place in the bedrooms of the nation, but it’s a different story when it comes to employers and the washrooms in their workplaces. 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 stalls.
The worker was employed as an aircraft log controller for I.M.P. Group, a company that operates aircraft repair, maintenance, and upgrade facilities at Halifax Stanfield International Airport. Hired in June 2000, the worker was stationed at a hangar space known as Hanger 9, which included a large hangar that could accommodate several aircraft and a three-storey office structure. The worker worked on the first floor of the 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 that he understood harassment included embarrassing others.
The first floor of the office had a washroom with four toilet stalls along with sinks and urinals that was used by all the male employees, including mechanics and technicians who worked in the hangar area. Shortly after the worker started his employment with I.M.P. Group, he started masturbating the toilet stalls during the workday if no one else was in a stall beside him. It was a habit he had developed before joining I.M.P. Group when he was in the military, where a lack of privacy on tours of duty led him to resort to masturbating in washrooms.
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 he should stop. He didn’t believe it affected his work and I.M.P. Group had no problems with his performance.
Employees complained of noise in washroom
However, in January 2016, two employees asked a production manager for guidance on how to deal with someone masturbating in the toilets. One of the employees identified the worker as the culprit because he had waited outside the washroom to see who it was, while the other recognized the worker’s shoes while sitting in the stall. The complaint made it to 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 if there was a medical reason. The worker suspected what they were talking about but 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 adventures for a while, but eventually resumed them while trying to be “more cautious.” However, by April 2018 more I.M.P. employees complained about “an issue recently with a male masturbating in the bathroom… for a few months now.” The employees had initially thought it a joke, but found it became “more frequent and brazen” as time passed.
I.M.P. Group conducted an investigation that included interviews with several employees — some who had directly observed the worker as being in the washroom when the masturbating was happening and some who had heard rumours. The employees reported hearing heavy breathing, moaning, and female moans likely coming from pornographic videos on the worker’s smartphone. Some employees said they refused to use the washroom because of what they had heard going on inside.
After the investigation, I.M.P. Group’s 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 it was him. He acknowledged he had been told previously that 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 what to do.
The worker felt stressed about the situation, as he was 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 the termination, arguing management’s warning in 2016 wasn’t specific enough and skirted around the activity, leading to the worker’s belief he was being warned for “inappropriate noise” that other employees had complained about. The union also argued the company didn’t follow progressive discipline, jumping straight to dismissal for which there wasn’t sufficient cause.
No progressive discipline: Union
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. The noises reported by other employees were consistent with masturbation and the worker didn’t indicate any other possible source for what they heard.
“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 union steward avoided mentioning masturbation directly but discussed unusual noises and activity in the washroom, which he and the worker “both knew exactly what was being discussed” and it should stop. However, though the worker stopped for a little while, he soon took up the activity again at work, 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, the arbitrator said. The worker admitted he was doing it and had been told not to previously, and he knew it was inappropriate and disturbing his co-workers.
The arbitrator also noted that 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, but 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 found it wasn’t a condition recognized by “any accredited professional governing body” such as the DSM or medical associations and the worker’s job performance wasn’t affected in any way — hence no disablement requiring 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.
The arbitrator 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.).
