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Employers have the duty to accommodate employees based on protected grounds under human rights legislation. This duty to accommodate often has implications where the employee has committed misconduct that leads the employer to wish to end the employment relationship, but doing so could be discriminatory because of a protected ground, often disability. In a recent Nova Scotia arbitration decision, the arbitrator considered the complex interplay between employee misconduct, alleged disability, and the employer’s duty to accommodate, as well as the high threshold of just cause dismissal for terminating the employment of an employee in a unionised workplace.

In UNIFOR, Local 2215 v IMP Group Limited (Aerospace Division) [IMP], an arbitrator upheld a dismissal of an employee for cause for masturbating in the workplace bathroom, despite the employee claiming to have a sex addiction.

The Employee Filed a Grievance After Being Dismissed for Masturbating at Work

In January 2016, the grievor’s co-workers complained that the grievor, a long-serving aircraft log controller at the employer’s hangar in Halifax, Nova Scotia, was masturbating in the men’s washroom. To address the complaints, management met with the grievor in January 2016 to advise him that others had complained about him “breathing heavily, making erratic movements and moaning” in the washroom, and that he should inform them if it was related to a medical condition. The grievor later testified that after the meeting he stopped masturbating at work “for a while”, but later resumed the practice while being “more cautious”.

However, in April 2018 another employee complained that someone had been masturbating in the men’s room “for a few months now” and that it was “becoming more frequent and brazen”. The employer investigated and concluded that the grievor was the person responsible. The grievor admitted to watching pornography and masturbating in the washroom at work, that he had already been advised that it was inappropriate, and that he did not have a good explanation. Consequently, the employer dismissed the grievor for cause after concluding the investigation, which he later challenged.

Notably, the employer had a policy prohibiting harassment, including “any 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”.

The Arbitrator’s Decision

The arbitrator found that the employer had established just cause to end the grievor’s employment, and dismissed the grievance.

First, the arbitrator found that the grievor knew that the meeting in January 2016 was about him masturbating at work, as evidenced by the fact that he stopped doing it for a while after the meeting was held. Therefore, the grievor did have notice that his employer considered masturbating at work to be inappropriate, that it was disturbing others, and that it should be discontinued.

Next, the arbitrator found that the grievor had violated the employer’s policies by masturbating at work “in such a way that other employees [became] personally aware (either by sight or sound) that the activity [was] taking place in their immediate vicinity”, so as to justify discipline and/or termination. The arbitrator concluded that discipline was warranted in the circumstances, subject to the union’s submissions regarding the grievor’s alleged sex addiction, because the grievor had violated the employer’s anti-harassment policy as his behaviour constituted “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”. The grievor knew, and had been warned, that his co-workers were embarrassed and distressed by him masturbating at work.

The arbitrator also rejected the union’s argument that the grievor’s behaviour should be excused because it was caused by a disability known as “sex addiction”. Specifically, the arbitrator was not persuaded on the evidence that sex addiction exists, that the grievor suffered from it, or that the grievor was disabled from performing the tasks and duties of his job. Therefore, the employer had no duty to accommodate the grievor because he did not have a disability.

Finally, the arbitrator found that the principle underlying the theory of progressive discipline had been satisfied in this case, such that the employer was justified in terminating the grievor’s employment rather than disciplining him. Although the arbitrator found that the January 2016 meeting was non-disciplinary, in the sense that no discipline was imposed, he found that it had fulfilled the purpose behind progressive discipline because it communicated the employer’s expectations and a warning of consequences to the grievor in a timely manner. Thus, the arbitrator concluded that the employer had just cause to terminate the grievor’s employment and dismissed the grievance.

Takeaways

IMP affirms the importance of implementing progressive discipline before dismissing an employee for just cause, because doing so can be crucial for upholding a termination for cause. In IMP, one of the union’s primary arguments challenging the grievor’s dismissal for just cause was that the employer failed to engage in appropriate progressive discipline. Although the arbitrator in IMP found that the 2016 meeting between the grievor and employer was non-disciplinary, he found that it fulfilled the purpose of progressive discipline by communicating the employer’s expectations and a warning of consequences to the grievor. This meeting assisted the employer with proving that there was just cause for dismissal in 2018. Therefore, employers, and particularly those with unionised workforces, should always consider progressive discipline before dismissing an employee for just cause.

IMP also illustrates that it is important for employers to maintain comprehensive policies to regulate employee conduct in the workplace. The fact that the employer in IMP had a broad anti-harassment policy was crucial to the arbitrator’s finding that the grievor masturbating at work was grounds for discipline, because masturbation in the workplace had never been addressed by the case law before. Thus, employers should ensure that they have policies in place that sufficiently address all types of conduct which they wish to prohibit in the workplace.

Finally, employers should note that the IMP decision has not conclusively determined that sex addiction cannot constitute a disability under human rights legislation. The arbitrator in IMP rejected the union’s argument regarding the grievor’s alleged sex addiction for evidentiary reasons. Crucially, he found that the grievor’s therapist, whom the union called as a witness, was not an expert on sex addiction and was therefore not qualified to give opinion evidence on sex addiction. Therefore, employers should not assume that sex addiction cannot constitute a disability for legal purposes, because the courts may decide a future case with a properly qualified expert witness differently. Further, when navigating accommodation requests based on alleged sex addiction, employers should ensure that they request medical information from a qualified expert.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.