Co-employees made complaints to their employer about a person “breathing heavily, making erratic movements and moving” in a bathroom stall in the unionized workplace.
The employer investigated and discovered the person to be a long-term employee.
The employer met with the employee to discuss these concerns, following which the employee appeared to have stopped for a period of time, but eventually resumed his bathroom sessions.
The employer invited the employer to explain if his need to satisfy himself in the workplace bathroom arose from a medical condition, but the employee did not identify any at the time.
Eventually the employee admitted to viewing pornography in the bathroom stall, while self-stimulating himself.
The union grieved his termination, for cause, claiming the employee’s workplace masturbation related to a sex addiction, protected by human rights laws.
The arbitrator concluded the employer knew what he was doing, had been warned not to do it and that he was causing an inappropriate disturbance in the workplace. His masturbation was not caused by sex addiction, or a disability. The arbitrator did not hold that his continuing masturbation qualified as a sex addiction, or whether such an addiction, if it exists, is a medical condition warranting the protection of human rights laws. Even if that were wrong, the union failed to prove that the employee’s addiction disabled him, or affected him from performing his job and, therefore, in the absence of any proved disability, the employer had no duty to accommodate his proclivity to stimulate himself in the bathroom.
This case does not definitively close the door on whether sex addiction is a recognized medical condition. The next case may derive a different result.
Rather, the case emphasizes the importance of progressively disciplining employees before terminating for cause. In this case, had the employer not initially warned the employee not to self-stimulate himself in the company bathroom, the conclusion of the case could potentially have been different.
For now, however, assume that masturbating at work is likely cause for your termination, for cause, particularly if other employees are aware of what you are doing.
The case:
Unifor, Local 2215 v. I.M.P. Group Limited (Aerospace Division), 2019 CanLII 42906 (NS LA).
