A Nova Scotia company was justified when it fired a unionized employee after he was caught masturbating in a bathroom stall at work, a provincial labour arbitrator has ruled.
The arbitrator has ruled that I.M.P. Group Limited, an aerospace company operating out of a hangar at the Halifax airport, was justified in firing the employee after other employees heard him masturbating in a washroom stall and because he had been warned two years earlier over similar conduct.
The employee is not named in the ruling, with I.M.P and Unifor agreeing that it would not be used due to the nature of what got him fired. The man is instead referred to as AB throughout the decision.
The ruling, which was made public earlier this month, is apparently one of the first on the topic. The legal teams on both sides were unable to “find any case dealing with masturbation in the workplace,” the decision reads.
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Arbitrator Agustus Richardson was asked to decide whether discipline and eventually termination was justified for loudly masturbating in a bathroom stall and whether a bathroom stall could be considered a private place.
Richardson said that he was not determining whether masturbating at work was permissible but instead finding whether AB had violated the privacy and comfort of fellow employees at the workplace.
AB testified that he would masturbate in one of the four toilet stalls in the washroom and that he would not do it if someone was using a stall next to him. He admitted to watching pornography on his phone but that he muted the phone when he did so.
AB testified that no one had told him to stop the practice or that it made them uncomfortable.
But Richardson said those arguments didn’t fly.
Two mechanics at the company had reportedly approached their union shop steward with complaints about someone masturbating in the washroom, but the steward “apparently didn’t want to entertain this issue.”
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The mechanics then escalated the issue, bringing it to management’s attention by mid-January 2016 and saying they had identified AB as the employee. One said they recognized AB’s shoes in the stall next to him while the other had waited for the masturbator to come out of the washroom. AB was the only one to exit the washroom.
As a result of the complaints, a manager spoke to AB telling him that there were complaints about him “breathing heavily, making erratic movements and moaning” and that they were concerned for his “well-being.”
Management asked that if the issue was medical in nature that he inform the company’s Human Resources department.
AB testified that he stopped for a while after the complaints but then “picked up the practice again.”
In April 2018, complaints about someone masturbating in the bathroom once again began circulating, with some workers refusing to use the washroom as a result.
AB eventually met with management on April 23, 2018, and was sent home. He was fired four days later on April 27, 2018.
Unifor, the employee’s union, argued that the previous warning had not been specific enough and that the employer had “skirted the issue” leading to the impression that what was being discussed was “inappropriate noise” rather than the employee masturbating.
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But the arbitrator ultimately rejected those arguments, determining that AB had been warned in the meeting and in a follow-up meeting with Unifor.
“Masturbation is not a topic of conversation about which people feel comfortable discussing openly. That plus concerns about privacy would make any attempt to discuss it personally embarrassing and likely to result in the use of euphemisms,” Richardson writes.
“Even if… discussion with the grievor was couched in terms of “unusual noises” I am satisfied that both knew exactly what was being discussed.”
Richardson found that the decision was justified and that the employee had “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.”
“He had been warned that he was not in fact masturbating ‘in private’ because co-workers using the washroom could hear him doing it, and could hear the porn he was watching while doing it.”
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