Canadian Employment Law Today

Canadian HR Reporter, 2019 Worker's self-love at work doesn't fly with employer Worker's washroom activities not private enough to avoid making co-workers uncomfortable, embarrassed; Breach of employer's harassment policy, code of conduct BY JEFFREY R. SMITH T he government may not have any place in the bedrooms of the na- tion, but it's a different story when it comes to employers and the washrooms in their workplaces. A Nova Scotia arbitrator has upheld the dismiss- al of a worker who unsettled many of his colleagues with too much self-love in the office washroom stalls. e 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. e 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 them- selves with honesty and integrity, and to treat others with fairness, dignity and respect" and prohibited harassment. Ha- rassment 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." e worker had a copy of the code and had acknowledged that he understood harassment included embarrassing others. e first floor of the office had a wash- room 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. e 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 masturbat- ing in the toilets. One of the employees identified the worker as the culprit be- cause he had waited outside the wash- room to see who it was, while the other recognized the worker's shoes while sit- ting in the stall. e complaint made it to the vice-president of HR and the man- ager of production control, who met with the worker about "unusual noises" he had made in the washroom and if there was a medical reason. e worker suspected what they were talking about but felt it was a private issue and didn't say any- thing 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 mem- bers. e worker denied doing anything wrong but mentioned he was going to seek medical help. e worker stopped his bathroom ad- ventures for a while, but eventually re- sumed them while trying to be "more cau- tious." 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." e 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 em- ployees — some who had directly observed the worker as being in the washroom when the masturbating was happening and some who had heard rumours. e em- ployees 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 per- son masturbating in the washroom and the worker admitted it was him. He ac- knowledged 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 any- thing 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." e worker was prepared to clean out his desk, but the meeting con- cluded with management telling the work- er to go home pending a decision by the company on what to do. e worker felt stressed about the situ- ation, as he was a private person and was uncomfortable with knowing co-work- ers had complained about his behaviour. He contacted the company's employee assistance program for referral to a coun- sellor. e worker didn't believe he had a sex addiction, but told the counsellor he had a problem. e counsellor thought the worker could have a sex addiction, though the counsellor wasn't licensed to diagnose psychological conditions. e counsellor suggested the worker try to distract him- self 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." 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. 4 CASE IN POINT: HARASSMENT BACKGROUND

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