ThyssenKrupp Elevator Canada INTRODUCTION During a lunchroom break, a male employee at ThyssenKrupp decided to take up a dare from a fellow colleague for $100 and the Jackass-like prank was videotaped then posted to YouTube. When it came to the attention of the HR manager and other senior management, the employee was fired for violating company policy. The employee argued in court that the organizational culture allowed such behaviour. But would the Ontario Labour Relations Board (OLRB) agree? BACKGROUND ThyssenKrupp Elevator Canada was subcontracting elevator installation at a construction site in downtown Toronto where a large office building was being built. All the workers on the site, including those from ThyssenKrupp, and the main contractor of the site, PCL Construction, were male and the culture of the workplace was described as a "macho" environment where pranks were played. There were reportedly pictures of women and provocative calendars hanging on walls, as well as signs displaying vulgar humour. There was little concern about these as access to the building was restricted to people involved in the construction project. One of ThyssenKrupp's employees at the site was an elevator mechanic. He and several other employees engaged in what he called "picking" on each other and playing pranks to keep things light at work. They also watched pornographic scenes on a worker's iPod and episodes of the television show Jackass, which features individuals doing stupid activities on dares. ESCALATION OF PRANK BEHAVIOUR Over a period of a few weeks, the mechanic and other employees performed more and more pranks that copied some of the ones they saw on the Jackass show. Typically these events took place in the basement lunchroom where employees gathered for breaks and meals, to change clothes, and to socialize. Soon, money was being offered on dares to do certain actions. For example, one ThyssenKrupp employee accepted a dare that involved a $60 paymentmoney collected from fellow employees, including three foremen. The dare involved the employee eating spoiled food found in the common refrigerator of the lunchroom. A couple of weeks after the first dare, the mechanic was observed playing with a stapler in the lunchroom on a break. One of the foremen walked in and jokingly said, "What are you going to do with that? Why don't you staple your nuts to something?" The mechanic jokingly replied that he'd do it "if you get enough money." Though he claimed it was intended as a joke, word spread within a few hours, and soon $100 was raised among seven other ThyssenKrupp and three PCL employees. Another four people were in the lunchroom later that afternoon watching when the mechanic decided to go ahead with the staple dare. He proceeded to drop his work uniform trousers and staple his scrotum to a wooden plank, which was met by "cheering and high fives," according to the mechanic. With the mechanic's knowledge, the prank was filmed on video. Included on-camera were all those employees present, wearing full worksite uniforms, PCL logos on hats, and TK shirt patchesall easily identifiable and recorded by a worker who was present that day. The mechanic was advised at a later date that the event was posted on YouTube. Initially, the mechanic did nothing about the YouTube posting, but eventually asked for it to be taken off the site. To ensure this was done, the mechanic went back to YouTube searching for the video clip, but couldn't find it. He assumed it had been removed, however it was nothe just didn't search correctly. In total, the video clip was assessable on YouTube for two weeks, during which time many employees in the construction industry watched it. It was during these two weeks that ThyssenKrupp became aware of the video after the HR department received an email with a link to the video, and several people discussed it with a ThyssenKrupp executive at a construction labour relations conference. Conference participants insisted the employee was from ThyssenKrupp, and they questioned how the company could allow something like that to happen during work hours. At this point, ThyssenKrupp management reviewed the video one more time and decided that the mechanic had violated its workplace harassment policy, which prohibited "practical jokes of a sexual nature which cause awkwardness or embarrassment." The mechanic was fired for "a flagrant violation" of ThyssenKrupp's harassment policy and risking the company's reputation. CULTURE AT FAULT Upon being fired from his job, the mechanic filed a grievance with the OLRB. He argued that dismissal was too harsh given the culture of the workplace which was accepting of that type of behaviour. He also said no one told him not to do it, no one expressed displeasure, and no one mentioned they were offended. He argued that other employees had done stunts but questioned why he was the only one disciplined for his actions. He also claimed to have never seen the workplace harassment policy, even though it was part of the orientation package. THE DECISION In July 2011, the OLRB found the mechanic's misconduct on the employer's premises, plus his permission to record it, "patently unacceptable in almost any workplace." The fact that his employer was easily identified in the video clip contributed to the decision. The fact that the mechanic claimed not to have known about the corporate harassment policy was irrelevanthe should have known better. The OLRB also dismissed as irrelevant that no one protested or objected to the prank during the lunch break, which the mechanic argued was "not during work hours." The court stated that ThyssenKrupp has an interest in preventing such horseplay and stunts in the workplace. They are in a safety-sensitive industry and such employee misconduct places the firm's reputation in jeopardy. The seriousness of the mechanic's misconduct also superseded any other factors, such as his claim of being a good employee with a clean record and the argument around the culture. There was no evidence that the company was aware of other pranks, and his role as the principle offender wasn't diminished by the culture, said the board. In dismissing the mechanics grievance, the board stated, "If (ThyssenKrupp) employees want to emulate the principles of Jackass by self-abuse, they may be free to do so when they are not on the (employer's) premises and cannot be identified as being associated with (ThyssenKrupp)." Reference: https://www.hrreporter.com/news/hr-news/construction-worker-sacked-for-youtube-stunt-legal-view/314047 Questions (1) What corporate values did ThyssenKrupp refer to when deciding to terminate the mechanic? What are the health and safety issues involved here? Do you think an informal work environment is leading towards a lack of strict health & safety policy at the workplace? Are these corporate values, the informal work environment, etc., in compliance with the Canadian Charter of Rights and Freedom? (2) Are there any Tort issues involved here? What other legal issues are involved here? Explain. (3) Considering that the mechanic claimed that the ThyssenKrupp culture contributed to such behaviour, in your opinion, does ThyssenKrupp need to change its corporate culture? If not, why not? Can the mechanic claim Tort Damages on the grounds that the company's work culture allowed and encouraged the event? (4) Did the Ontario Labour Relation Board (OLRB) accept the defense that organizational culture contributed to the employee behaviour? Explain their reasoning. Considering the company's work environment, what factors need to be considered while updating the company's health & safety policy? While answering these questions, keep in mind the fundamentals of the Canadian Charter of Rights and Freedom and Humans Rights in Canada. (5) If this case goes to court, what arguments the Plaintiff's Lawyer, representing the fired worker, would present before the court? What would be the line of Defense for the Lawyer of Thyssen Krupp Elevator?