In the recent case of Unifor, Local 2215 and I.M.P. Group Ltd. (AB), Re, a Nova Scotia Arbitrator upheld the termination of an employee for cause and confirmed that progressive discipline is not “an invariable rule that must be followed in all cases regardless of the circumstances.”
Background
The grievor (“AB”), whose real name was not used in the proceedings because of the conduct that prompted his dismissal, worked as an aircraft log controller for I.M.P. Group Limited (“IMP”) for eighteen years.
At the start of his employment, AB was provided with a copy of IMP’s Code of Business Conduct (the “Code”) and excerpts from the Human Resources – Policy and Procedures Manual (the “Manual”). The Code and the Manual both stipulated that the harassment of others is prohibited, and that included the embarrassment of others.
In January 2016, IMP became aware of complaints by other employees that someone had been masturbating in the men’s washroom on the first floor. The workers were so disturbed by what they were hearing, that several began to completely avoid using that particular washroom.
Following an investigation, IMP discovered that AB was the person masturbating in the washroom on the first floor. A meeting was held between IMP and AB during which AB was advised that IMP had received several complaints from employees that identified him as the “individual in the stall next to them … breathing heavily, making erratic movements and moaning.” During the meeting, the exact act in which AB was repeatedly engaging in was not directly mentioned – it was merely insinuated. However, IMP did make it clear that this behaviour was inappropriate and should cease. They also advised AB that if it was a medical condition that was causing the problem he should seek medical or other help.
Following the meeting, AB stopped for a while but then picked up the practice again. In April 2018, IMP received new complaints that an individual was overheard masturbating in the men’s washroom. Another investigation was conducted and AB was once again identified as the person masturbating in the washroom stalls.
On April 23, 2018, a meeting was held between IMP and AB. This time IMP was clear with AB that the meeting was about him masturbating in the men’s washroom stalls. AB did not deny the conduct he was being accused of and he admitted that he was advised before that this behaviour was inappropriate.
Following the outcome of the investigation, AB’s employment was terminated for cause. While the termination letter lacked a specific reason for his termination, it was undisputed that IMP terminated AB’s employment because he was overheard by other employees on numerous occasions masturbating in the washroom stalls and he had been warned about this behaviour before.
Consequently, AB brought a grievance against IMP for wrongful dismissal. In defence of his behaviour, AB claimed that he was a sex addict.
Decision
The Arbitrator upheld IMP’s decision to terminate AB’s employment for just cause.
The Arbitrator was satisfied, based upon the evidence before him, that although the word “masturbation, or any comparable term” was not used at the meeting in January 2016, AB understood the activity that was being discussed, that other employees were disturbed by it and that such activity was inappropriate.
The Arbitrator noted while the act of masturbating itself was not illegal, the issue was whether masturbating in the immediate vicinity of other employees was a violation that warranted disciplinary action.
The Arbitrator commented that as a general norm, sexual activity is conducted in private. Those not engaged in the sexual activity normally do not want to become “inadvertent voyeurs.” There is also an expectation that their sense of personal decorum will be respected and that those engaged in such activity would take all possible steps to ensure that the wall of privacy is maintained and not breached.
AB did not do this. Instead, he engaged in “an activity that he knew would … cause embarrassment and distress” to his colleagues. He was warned about his conduct but he continued to engage in it.
The Arbitrator held that AB’s conduct amounted to 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 was not persuaded, based on the evidence, that AB suffered from a sex addiction and that IMP was in breach of its duty to accommodate. The Arbitrator noted that even if sex addiction was a recognized condition and AB did suffer from it, there was no evidence to suggest that AB’s ability to perform his job was affected by it. Therefore, IMP was not under a duty to accommodate him.
The Arbitrator held that, in this case, progressive discipline was not appropriate. Although the meeting in January 2016 was non-disciplinary (that is, no discipline was imposed), it can still be taken “as satisfying the principle that underlies the theory of progressive discipline.” Namely, IMP communicated its expectations to AB in a timely manner and they warned AB of the consequences if the behaviour continued. The Arbitrator was also satisfied that AB understood the purpose of the meeting, the message that was being relayed and the seriousness of his actions. Notwithstanding this warning, he continued to behave inappropriately.
If you are an employer, we can assist you through the investigation of alleged wrongdoing to the assessment of the appropriate discipline. If summary dismissal is warranted, we will ensure that it is implemented properly. Equally, if you are an employee whose employment has been terminated for cause, we will work with you to pursue your rights and assess any potential claim.
