A company is justified in firing a unionized employee for masturbating in a bathroom stall at work, a labour arbitrator in Nova Scotia has ruled.
The arbitrator concluded that the employer, an aerospace firm operating hangars at the Halifax airport, had just cause to terminate the employee because his colleagues could hear what he was doing, and it caused “embarrassment and distress” in the workplace. The employee had also been warned about his behaviour two years earlier.
The employee and Unifor, his union, tried various unsuccessful arguments in their grievance, including that he had a disability of sex addiction. They also argued he had not been properly warned because managers were too embarrassed to directly tell him what the complaints were about and instead spoke in euphemisms about “unusual noises.”
For privacy reasons the employee is not named in the ruling, which came down last week and is publicly posted in an online legal database.
It appears to be the first Canadian labour case on the subject. “Neither (the company) nor the union’s representative had been able to find any case dealing with masturbation in the workplace,” the ruling says.
Arbitrator Gus Richardson was asked to decide whether the act of loudly masturbating in a stall justified discipline and termination, and whether a bathroom stall is a sufficiently private place.
“On this point I accept that there is nothing illegal about masturbation,” he wrote. He said the problem is the employee violated the privacy and sense of personal decorum of his co-workers, and ignored warnings to stop. “He instead conducted an activity that he knew (and certainly ought to have known) would and did cause embarrassment and distress to his co-workers once they became aware that he was doing it in close proximity to them.”
The employee testified that he masturbated in one of four stalls in a hangar bathroom, but only when there was nobody in a stall next to him. He maintained that he never made noises and kept his phone on silent if he was watching videos, but the arbitrator rejected that claim.
On this point I accept that there is nothing illegal about masturbation
“I do not accept the grievor’s testimony that he made no sounds while performing this activity,” Richardson wrote. “Obviously if that were true no one would have known that he was doing it. But people did know. They could only have known about it because they could hear it.”
Two technicians had approached their union shop steward with complaints, but the steward “didn’t want to entertain this issue.” Instead the technicians went to management, who met with the employee but avoided directly mentioning the issue. A manager told the employee there were complaints about noises in the bathroom, such as “breathing heavily, making erratic movements and moaning,” and said management was concerned for the employee’s well-being. They told him that if he had a serious medical issue, he should alert human resources.
Richardson ruled that this meeting, as well as a follow-up with the union, counted as sufficient warning.
“Masturbation is not a topic of conversation about which people feel comfortable discussing openly,” he wrote. “That, plus concerns about privacy, would make any attempt to discuss it personally embarrassing and likely to result in the use of euphemisms. Even if … discussion with the grievor was couched in terms of ‘unusual noises’ I am satisfied that both knew exactly what was being discussed — and that it was an activity that was causing concern amongst the grievor’s co-workers and ought to be stopped.”
But two years after that meeting, complaints about the employee’s behaviour reached a boiling point again, with one employee complaining to human resources that the masturbation had become “more frequent and brazen.” The company conducted an investigation, and the employee was eventually fired.
Richardson considered evidence that the employee has a disability in the form of a sex addiction that should mitigate the punishment. He accepted evidence from a therapist on sex addiction despite protests from the company that the therapist’s education was from an online university that was not accredited by any national psychological association.
“In short, even if there was a condition that could be called a ‘sex addiction’ — and I was not persuaded on the evidence that there was — and even if that was what the grievor suffered from — and again I was not persuaded that was the case — there was nothing to establish that it was disabling in any way,” he concluded.
“I am accordingly persuaded that the employer had just cause not only to discipline the grievor, but to terminate his employment. The grievance is dismissed.”
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