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28 August 2019
Can a unionised employee be fired for masturbating at work or is there a duty for employers to accommodate this conduct as a sex addiction? These were the novel questions considered in UNIFOR, Local 2215 v IMP Group Limited (Aerospace Division) (2019 CanLII 42096 (NS LA)).
In January 2016 employees complained about someone "breathing heavily, making erratic movements and moaning" while in a bathroom stall. The grievor – a long-service employee – was identified as the culprit. The employer met with the grievor to discuss these complaints. The grievor was told that if his behaviour was connected to a medical issue, he should inform the company. The conduct stopped for a time.
In April 2018 the employer received similar complaints, thus prompting an investigation and further meeting with the grievor. The grievor admitted that he was watching pornography and masturbating in the washroom at work. The grievor was terminated for cause and the union filed a grievance.
The arbitrator decided that the grievor had been warned in 2016 to stop masturbating at work. The grievor knew that:
At the hearing, the grievor acknowledged that he did stop for a period. When the grievor started masturbating at work again in 2018, he did so knowing that it was inappropriate and that his conduct made his co-workers uncomfortable.
The arbitrator rejected the argument that masturbating at work was caused by the grievor's sex addiction. The arbitrator was not convinced that sex addiction is a medical condition or that the grievor was suffering from it. Even if he were, there was no evidence to establish that the alleged addiction was disabling. Since the alleged addiction did not affect the grievor's ability to perform his job duties, there was no disability and thus no duty for the employer to accommodate.
The arbitrator decided that the grievor was terminated for cause and dismissed the grievance.
This case does not end the dispute about whether a sex addiction is a recognised medical condition that could be a disability. The arbitrator rejected the union's argument only because of problems with the evidence. The grievor was treated by a regular therapist with no expertise in sex addiction. Thus, the therapist was not qualified to offer an opinion about whether sex addiction is a recognised condition or disability. With a properly qualified expert in a different case, there could be a different outcome.
This case reinforces the importance of progressive discipline in upholding a cause termination. The 2016 meeting was key to the arbitrator's finding. While the arbitrator accepted that the meeting had been non-disciplinary, it served the same purpose as progressive discipline. It put the grievor on notice of the employer's expectations about appropriate conduct and the consequences of failing to meet those expectations. Without it, the employer may have had a more difficult time proving just cause in 2018. It is a reminder for employers about the importance of both disciplinary and non-disciplinary performance and conduct discussions.
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