Canadian Employment Law Today

Canadian HR Reporter, 2019 On April 27, 2018, I.M.P. Group termin- ated the worker's employment for breach- ing the company's harassment policy and code of conduct. e 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 employ- ees had complained about. e union also argued the company didn't follow progres- sive discipline, jumping straight to dismiss- al for which there wasn't sufficient cause. No progressive discipline: Union e arbitrator found that when manage- ment 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. e noises reported by other employees were consistent with masturbation and the worker didn't indicate any other pos- sible 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 employ- ees had heard it happening and were dis- turbed by it; that if there was some med- ical reason for such conduct he should do something about it; and that it was in- appropriate and should not be continued," said the arbitrator. e arbitrator applied the same rea- soning to the worker's discussion with the union steward around the same time. e union steward avoided mentioning mas- turbation 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 work- er again in April 2018, there was no doubt the problem was the worker masturbating in the washroom, the arbitrator said. e worker admitted he was doing it and had been told not to previously, and he knew it was inappropriate and disturbing his co-workers. e arbitrator also noted that the work- er said he didn't make any sounds during his washroom sojourns, but this obvious- ly 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. e arbitrator found that the worker par- took in an activity that he knew or ought to have known would cause embarrassment and distress to his co-workers by mastur- bating in close proximity to them, noting that sexual activity is normally conducted in private, both visually and auditorily. e worker had been warned that masturbat- ing 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 be- cause the behaviour is offensive, embar- rassing, 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 disable- ment requiring accommodation. ough the January 2016 meeting didn't result in any discipline, it served the pur- pose of informing the worker that his activ- ity was inappropriate and should stop — a part of progressive discipline. erefore, the arbitrator found that the worker con- tinued 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. e 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 Lim- ited (Aerospace Division) (May 15, 2019), A.M. Richardson, QC – Arb. (N.S. Arb.). June 26, 2019 | Canadian Employment Law Today ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@habpress.ca, or visit www.employmentlawtoday.com for more information. CREDIT: SUTIDAS/SHUTTERSTOCK

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