Question

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 payment—money 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 patches—all 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 not—he 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 irrelevant—he 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).”

Question 5. If this case goes to court, what arguments the Plaintiff’s Lawyer, representing the fired worker, would present before the court?

Question 6. What would be the line of Defense for the Lawyer of Thyssen Krupp Elevator?

Each question may be answered in about 150 to 200 words.

Answer 1

Answer 5= The argument of the plaintiff can be that the similar types of practices were quite common in the workplace and no action was taken by the management against these sort of activities, This really boosted and created a perception that these acts are permitted by the management, In fact, no intervention was made by the management in order to prevent the occurrence of these incidences. In fact, the plaintiff was not the only one who was involved in these sorts of acts, there were other workers who were involved in similar kinds of acts. But the strict action was taken against only the plaintiff casing this case to be a case of personal discrimination and unfair treatment of individual employees. If action has to be taken then it must be taken against all the employees and there must be a warning before taking the strict actions for the acts so that the actions can be prevented.

Answer 6=

The company can state that no employer can tolerate this kind of activities to be carried out in the workplace any circumstances what so ever as this not only has the potential of tarnishing the image of the company but it can also make the entire workplace a hostile one for the ones who do not feel comfortable to take participation in these kinds of acts. The workplace must be used only for work-related activities and any act that can hamper in facilita8ing a free and fair environment, creating indiscipline and any act that can create the restrictions in the normal operating of the workplace must be restricted and disciplinary action has to be taken. As the objective behind the action is to ensure the dignity of the workplace and to send a message to the employees that the workplace is only for the work related activities and no action will be allowed that is not permitted in the job description or that is not related to work directly or indirectly. So this kind of decision had to be taken