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 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?

Question 2. 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?

Question 3. Are there any Tort issues involved here? What other legal issues are involved here? Explain

Question 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?

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

Answer 1

Answer to Question 1:

In the scenario outlined, ThyssenKrupp decided to terminate the employment agreement with the employee who was the ​​​subject of a video posted online where the employee in question is found to be stapling his private parts to a wooden plank. The reason for the termination of employment was due to the fact that the video had gained a lot of traction in the industry and upon being brought to the HR's notice, it was found to violate the workplace harassment policy which strictly prohibited practical jokes of sexual in nature which could lead to awkwardness or embarrassment. ​This act, apart from violating the harassment policy, also risked the company's reputation. In light of the details outlined, the following corporate values were at stake:

• ​integrity and ethics of the workplace,
• respect of the company's premises and fellow associates,
• ​disregard for the health and safety of the employees.

​In continuation to the above pointers, the major health and safety issue in this situation would be any sustainable physical injuries as a result of the act of stapling a physical body part to a wooden plank. The possibility of mutation or infection arising from this scenario is of the primary concern and should ideally be avoided at all costs.

The employee in question had challenged the termination by mentioning that the company's culture was tolerable of such pranks and behavior. However, closely studying the case, most of such behavior - indulging in pranks and informal conversations, took place in the lunchroom during breaks. However, the informal behavior, in this case, cannot be limited to just the pranks. As outlined in the question, usage of vulgar photographs or pornographic videos should ideally not be a part of the informal employee culture. However flexible and informal a workplace culture can be, the health and safety of the employees should never be undermined and in this particular case, it is later displayed that there are company policies that are in place, however, they will be effective only if the employers drive through the message to their subordinates. Hence, in my opinion, the lack of proper health and safety measures in this organization is a result of more mismanagement rather than an informal environment.

Answer to Question 2:

As per the situation outlined, it is my understanding that the corporate culture in ThyssenKrupp is inclined more towards facilitating relation-building amongst employees and a bit informal in structure. The culture in any organization plays a very important role in defining its success. The various important impacts of having a robust and dynamic corporate culture are as follows:

• promoting unity,
• ​providing an informal control mechanism,
• creating a natural flow of communication,
• encouraging commitment to work and the organization,
• promoting a sense of belongingness or ownership,
• enhancing mutual trust and cooperation,
• an overwhelming sense of satisfaction at work.​

Such less tense cultures tend to provide a lot of benefits to a business and hence I don't believe that ThyssenKrupp should completely overhaul their corporate culture and make it very struct. However, unethical practices during work hours need to be discouraged and that is the idea on which the organization should focus on. Instead of barring the enjoyment of the workers, keep a thorough check on their practices to avoid promoting any activities that have the potential to be construed as a violation of the company's policies. Hence, the suggestion would be to add another specific to the corporate culture by spreading awareness and providing resources for the employees to be well aware of what is not allowed within the company's premises.

Answer to Question 3:

​Tort cases usually refer to one party (personal/entity) inflicting physical injury to the other party where the other party is eligible to sue for damages.​ Tort Law focuses on whether a person is legally liable for an injury against another. In order for a tort claim to hold grounds, the defendant needs to have conducted a breach of duty against the injured party which resulted in injuries. There could be an intentional tort or negligent tort. Since in both cases there are two parties involved - one inflicting injury on the other, it is not possible to classify the situation outlined in the question to be considered having Tort issues.

Instead, a few other legal issues that are involved in this situation are:

• ​​Disciplinary measures - these measures are needed to deal with scenarios that concern job-related behavior which does not meet the expected standards. It is important for any organization to formulate disciplinary rules and make every employee aware of the same so that they know what is expected of them. There are usually penalties derived for such measures and employees have the right to appeal against the findings of the disciplinary accusation and also the penalties charged against him.
• Workplace safety - All workers should feel safe in their environment - especially while dealing with dangerous equipment. Injuries from accidents or trips and falls are a few of the major reasons for workplace lawsuits and are usually caused due to negligence on the part of the employer - be it for not re-iterating the workplace rules or for not providing the required resources to make the workplace environment safe for all.
• Breaking privacy laws - In the scenario under discussion, the mechanic was aware of the video being taken however he did not grant explicit permission for the video to be published online and there was clear displeasure on his end as he wanted to take it down. Such instances can be challenges under violation of privacy laws at the workplace.

Answer to Question 4:

​The Ontario Labour Relation Board (OLRB) dismissed the claims of the employee that the organizational culture was at fault and which misled him into believing that such activities are permissible. The main argument that the OLRB outlined in this claim was that there was no presented/provable source providing substantial information that ThyssenKrupp was aware of such other pranks being conducted in the office premises. OLRB further explains that such claims do not take away from the responsibility that every employee has towards the organization they work for and the principal offender, in this case, would still remain - the mechanic.

Now, considering the situation in the company, health and safety standards and policies need to be drafted with utmost clarity. And the factors that need to be focused on the same are:

• Safety factors - limitation of access of employees to hazardous/dangerous equipment off work-time or premises, encouraging dialogue to spread awareness of the activities that are not permitted in the workplace,
• Specific hazards - injuries that could arise from manual handling of sensitive substances or objects, operating powered hand tools or any other machinery/parts that could cause injury,
• Health surveillance - proper check on adherence to the health and safety policies.