All’s Fair (Almost) In Love And Work

It will soon be Valentine’s Day and in the news, recently, has been a story of two Vernon firefighters caught on video having sex in the Fire Chief’s office. They were fired and their case has been the subject of much discussion about the circumstances of the video recording, their right to privacy, etc.

It’s not surprising that this item has gotten a lot of press. After all, it has all the elements of a great story. To me, the most comical part is that they chose the Fire Chief’s office for their encounter… it turned out that wasn’t the wisest of decisions.

Invasions Of Privacy

I read a recent editorial on the topic of the ensuing arbitration hearing (which, I gather, rejected the two employees’ appeal of their dismissal and turned somewhat on the right to privacy issue and the admissibility of the video). The editorial questioned the arbitrator’s findings on the privacy issue (according to the article, the arbitrator found that “the brief, fleeting loss of privacy by individual firefighters … was at the lower end of any range of seriousness of invasion of privacy at work”) and also questioned the presence of “due process”.

This isn’t the space to go into a lengthy discussion about the criteria and process by which arbitrators assess the admissibility of covert surveillance evidence. Perhaps it will suffice to say that labour arbitrators tend to be very experienced employment/labour lawyers, they have a well-established structure by which to assess admissibility of covert surveillance evidence, and (in my experience) they can be relied upon to lean towards protecting individuals’ privacy.

So, there should be no real concern about due process, here. The editorial concluded with…

“But the main threat lies in the proliferation of these [video recording] technologies. When anyone can install them, no one’s privacy is safe. We need tougher limitations than currently exist, particularly in protecting the powerless.”

I don’t think two professional fire fighters could be classified as powerless and, after all, they did make their own decision to engage in sexual relations in the workplace. Regardless, what makes me wonder about situations such as these is the (almost) automatic tendency to treat them as matters requiring discipline and, ultimately, as legal matters.

A Similar Story

Many years ago, I served as the head of human resources/industrial relations for a large truck manufacturer in Kelowna. I was in charge of matters involving employee discipline.

Early one morning, upon my arrival, an agitated production supervisor appeared, armed with the news that two production employees working the night shift had engaged in sexual relations in a sleeper cab on the assembly line. I don’t recall asking for specifics, but it seemed these two weren’t using the sleeper cab for sleeping… *

I recall the supervisor being determined that disciplinary measures must be meted out. My (admittedly dimming) recollection is that my conversation with him went something like this…

“Do you have any reason to think it wasn’t consensual?”
“No.”

“Did either of them complain about it?”
“No.”

“Did they cause any damage?”
“No.”

“Did they leave any kind of a… mess?”
“No.”

“Sooo… why are we even talking about this??”

My recollection is that I advised him to speak to the amorous couple, advise them not to do it again, and leave it at that. He wasn’t happy about my less-than-outraged reaction. But I was reluctant to go down the path of disciplining (possibly firing) two employees for getting frisky in the middle of the night.

Was that the correct decision? Who’s to say, really? A decision is correct only in hindsight, taking into account the circumstances, considering the objectives and rights of all the parties, and in light of the practical outcomes which ensued. Did I think it was the correct decision in that moment? Yes. Do I still, over 15 years later, think it was the correct decision? Yes.

What To Do In These Situations?

Some employers may not agree with that outcome (plainly, the Vernon Fire Department is among them). But, I’ve asked myself many times over the years – in situations involving employee misconduct of all kinds – “Is this really something that a person should lose his or her career over?”

Don’t get me wrong, having sex in the workplace is unquestionably inappropriate. In some situations it can be downright dangerous and I’m not in any way condoning that. Especially in safety-sensitive settings, any distraction from work duties is to be strongly discouraged.

But, it’s so easy to leap to the conclusion that discipline (possibly dismissal) is warranted for all manner of poor conduct. My experience has been that it’s much harder to pause, take stock, think about the situation rationally and objectively, and reach an outcome which is proportionate and practical.

Before turning the matter into a legal battle by imposing disciplinary measures (especially serious ones such as summary dismissal), we should be asking ourselves if something less than punitive measures would suffice. Did the two Vernon firefighters deserve some discipline? Probably. Did they deserve to lose their career over that encounter? I have a very hard time answering that question with a “yes”.

In this Valentine’s season of romance, my message to employers is “make love, not war”. My message to employees is, “be smart and do your lovemaking at home”.

* I never did know which two employees “got busy” in the sleeper cab on the assembly line, but I suppose there are at least two people out there somewhere in Kelowna who know the answer.

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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.

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