ThyssenKrupp ElevatorCanada

INTRODUCTION During alunchroom break, a male employee at ThyssenKrupp decided to take upa dare from a fellow colleague for $100 and the Jackass-like prankwas videotaped then posted to YouTube. When it came to theattention of the HR manager and other senior management, theemployee was fired for violating company policy. The employeeargued in court that the organizational culture allowed suchbehaviour. But would the Ontario Labour Relations Board (OLRB)agree?

BACKGROUNDThyssenKrupp Elevator Canada was subcontracting elevatorinstallation at a construction site in downtown Toronto where alarge office building was being built. All the workers on the site,including those from ThyssenKrupp, and the main contractor of thesite, PCL Construction, were male and the culture of the workplacewas described as a “macho” environment where pranks were played.There were reportedly pictures of women and provocative calendarshanging on walls, as well as signs displaying vulgar humour. Therewas little concern about these as access to the building wasrestricted to people involved in the construction project. One ofThyssenKrupp's employees at the site was an elevator mechanic. Heand several other employees engaged in what he called “picking” oneach other and playing pranks to keep things light at work. Theyalso watched pornographic scenes on a worker's iPod and episodes ofthe television show Jackass, which features individuals doingstupid activities on dares.

ESCALATION OF PRANKBEHAVIOUR Over a period of a few weeks, the mechanic and otheremployees performed more and more pranks that copied some of theones they saw on the Jackass show. Typically these events tookplace in the basement lunchroom where employees gathered for breaksand meals, to change clothes, and to socialize. Soon, money wasbeing offered on dares to do certain actions. For example, oneThyssenKrupp employee accepted a dare that involved a $60payment—money collected from fellow employees, including threeforemen. The dare involved the employee eating spoiled food foundin the common refrigerator of the lunchroom. A couple of weeksafter the first dare, the mechanic was observed playing with astapler in the lunchroom on a break. One of the foremen walked inand jokingly said, “What are you going to do with that? Why don'tyou staple your nuts to something?” The mechanic jokingly repliedthat he'd do it “if you get enough money.” Though he claimed it wasintended as a joke, word spread within a few hours, and soon $100was raised among seven other ThyssenKrupp and three PCL employees.Another four people were in the lunchroom later that afternoonwatching when the mechanic decided to go ahead with the stapledare. He proceeded to drop his work uniform trousers and staple hisscrotum to a wooden plank, which was met by “cheering and highfives,” according to the mechanic. With the mechanic's knowledge,the prank was filmed on video. Included on-camera were all thoseemployees present, wearing full worksite uniforms, PCL logos onhats, and TK shirt patches—all easily identifiable and recorded bya worker who was present that day. The mechanic was advised at alater date that the event was posted on YouTube. Initially, themechanic did nothing about the YouTube posting, but eventuallyasked for it to be taken off the site. To ensure this was done, themechanic went back to YouTube searching for the video clip, butcouldn't find it. He assumed it had been removed, however it wasnot—he just didn't search correctly. In total, the video clip wasassessable on YouTube for two weeks, during which time manyemployees in the construction industry watched it. It was duringthese two weeks that ThyssenKrupp became aware of the video afterthe HR department received an email with a link to the video, andseveral people discussed it with a ThyssenKrupp executive at aconstruction labour relations conference. Conference participantsinsisted the employee was from ThyssenKrupp, and they questionedhow the company could allow something like that to happen duringwork hours. At this point, ThyssenKrupp management reviewed thevideo one more time and decided that the mechanic had violated itsworkplace harassment policy, which prohibited “practical jokes of asexual nature which cause awkwardness or embarrassment.” Themechanic was fired for “a flagrant violation” of ThyssenKrupp'sharassment policy and risking the company's reputation.

CULTURE AT FAULT Uponbeing fired from his job, the mechanic filed a grievance with theOLRB. He argued that dismissal was too harsh given the culture ofthe workplace which was accepting of that type of behaviour. Healso said no one told him not to do it, no one expresseddispleasure, and no one mentioned they were offended. He arguedthat other employees had done stunts but questioned why he was theonly one disciplined for his actions. He also claimed to have neverseen the workplace harassment policy, even though it was part ofthe orientation package.

THE DECISION In July2011, the OLRB found the mechanic's misconduct on the employer'spremises, plus his permission to record it, “patently unacceptablein almost any workplace.” The fact that his employer was easilyidentified in the video clip contributed to the decision. The factthat the mechanic claimed not to have known about the corporateharassment policy was irrelevant—he should have known better. TheOLRB also dismissed as irrelevant that no one protested or objectedto the prank during the lunch break, which the mechanic argued was“not during work hours.” The court stated that ThyssenKrupp has aninterest in preventing such horseplay and stunts in the workplace.They are in a safety-sensitive industry and such employeemisconduct places the firm's reputation in jeopardy. Theseriousness of the mechanic's misconduct also superseded any otherfactors, such as his claim of being a good employee with a cleanrecord and the argument around the culture. There was no evidencethat the company was aware of other pranks, and his role as theprinciple offender wasn't diminished by the culture, said theboard. In dismissing the mechanics grievance, the board stated, “If(ThyssenKrupp) employees want to emulate the principles of Jackassby self-abuse, they may be free to do so when they are not on the(employer's) premises and cannot be identified as being associatedwith (ThyssenKrupp).”

(2) Considering thatthe mechanic claimed that the ThyssenKrupp culture contributed tosuch behaviour, in your opinion, does ThyssenKrupp need to changeits corporate culture? If not, why not?   

(3)  You have to take one side, either the companyThyssenKrupp or the fired employee. If you decide to representThyssenKrupp, then you are the defense lawyer. If you decide torepresent the fired mechanic, you are the Plaintiff’s Lawyer.Present your arguments with evidences and supporting matter to theJudge.