As our regular readers are likely well aware, unionized employers are held to a high threshold when asserting just cause termination. A recent decision out of Nova Scotia highlights the often complex intersection between employee misconduct, progressive discipline, and alleged disability.
In UNIFOR, Local 2215 v I.M.P. Group Limited (Aerospace Division), a long-service employee was terminated for repeatedly masturbating in a workplace bathroom stall. The employer initially became aware of the grievor's activities in January 2016 after receiving multiple complaints from other employees. On the basis of these complaints, the employer met with the grievor and advised that multiple employees had come forward and disclosed that there was an individual in the bathroom who was "breathing heavily, making erratic movements and moaning" and that he had been identified as that individual. In this meeting, the employer advised the grievor that if there was a medical issue underlying this behaviour, it was important for him to advise Human Resources so that appropriate steps could be taken.
In April 2018, new complaints arose and the employer launched an investigation which, again, identified the grievor as the culprit.
Arbitrator Richardson Q.C., summarized the novel issues raised in the grievance as follows:
"Is masturbation at work in a washroom cubicle a breach of the provisions of a collective agreement, or to an employer's workplace conduct policy or guidelines? Does such conduct warrant discipline up to and including termination? Could such conduct be the product of a disability (namely, a sex addiction), so as to mitigate or avoid any discipline that might otherwise be imposed for such activity?"
The union took the position that the employer had not met its burden of establishing just cause as it failed to establish that masturbation in the privacy of a bathroom stall was grounds for termination; or that the grievor had been warned with respect to the 2016 incident that masturbation was inappropriate conduct that could attract discipline.
On the issue of whether discipline was appropriate in the circumstances, Arbitrator Richardson held that, as a general social norm, individuals engaged in sexual activity, whether conducted alone or with another, are expected to take all possible steps to ensure that privacy (both visual and auditory) is maintained. The grievor failed to do so and conducted an activity that he knew would and did cause embarrassment and distress to his co-workers.
Further, this behaviour was not excused on the basis that it was a disability caused by a sex addiction:
"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. But if it did not affect his ability to perform the tasks and duties of his job then there was no disability—hence no duty on the Employer's part to accommodate him. Nor would it offer anything by way of mitigation for his decision to continue on with the activity after being warned about it in 2016."
Arbitrator Richardson was satisfied that the grievor understood the message that the Employer was conveying to him in 2016. Accordingly, although the 2016 meeting was not disciplinary in nature, it was found to satisfy the principle that underlies the theory of progressive discipline – timely communication of an employer's expectations and a warning of consequences.
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