Construction worker sacked for YouTube stunt (Legal view)

Escalating pranks, YouTube video lead to termination
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 10/25/2011

A series of escalating pranks at an Ontario construction site has led to a worker being fired after a video of him nailing his private parts to a board surfaced online.

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 of ThyssenKrupp and the main contractor of the site, PCL Construction, were male and the culture of the workplace was a “macho” environment where pranks were played. There were reportedly pictures of women and “provocative” calendars hung 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 in order to keep things light at work. They would also watch pornographic scenes on a worker’s iPod and episodes of the television show Jackass, which features individuals doing stupid activities on dares.

Escalating stunts, pranks emulated TV show

Over a period of two weeks, the mechanic and some other employees performed a series of pranks on each other and began daring each other to do things, similar to those seen on Jackass.

For example, one Thyssen-Krupp employee was offered $60 — collected from other employees in the basement lunchroom, including three foremen — to eat spoiled food in the refrigerator. Employees gathered in the lunchroom for breaks, to socialize and to change clothes.

A couple of weeks after the first dare, a mechanic was in the lunchroom on a break when he heard a foreman say to an employee, “Why don’t you staple your nuts to something?” The mechanic jokingly said he’d do it “if you get enough money.”

Though he claimed it was intended as a joke, word spread and $100 was raised among seven ThyssenKrupp and three PCL employees. Another four people were in the room watching when the mechanic decided to go ahead with the stunt. He proceeded to drop his trousers and staple his scrotum to a wooden plank, which was met by “cheering and high fives,” according to the mechanic.

Another employee recorded the stunt and told the mechanic it had been posted on YouTube. The mechanic initially did nothing but later asked for it to be taken down. He searched for it but went to the wrong website and assumed it had been removed. After the video was on the Internet for two weeks, it was finally taken down.

While the video was online, many people in the construction industry saw it. Thyssen-Krupp became aware of it after its HR department received an email with a link to the video and several people discussed it with a ThyssenKrupp executive at a construction industry labour relations conference. Some specifically made comments it was a Thyssen-Krupp employee in the video and it was unbelievable something like that could happen.

ThyssenKrupp management viewed the video and determined 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.

Stunts part of ‘workplace culture’: Employee

The mechanic filed a grievance, arguing dismissal was too harsh, given the culture of the workplace which was accepting of that type of behaviour. He also said he would not have done it if anyone present had expressed displeasure or offence. He argued several other employees were involved in the incident and had done other stunts but he was the only one disciplined. He also said he had never seen the workplace harassment policy, though it was part of the employee orientation package.

In July 2011, the Ontario Labour Relations Board found the mechanic’s misconduct on the employer’s premises and his permission to have it recorded was “patently unacceptable in almost any workplace,” particularly since he and his employer were easily identified in the video. This misconduct was serious enough that it didn’t matter whether the mechanic knew about the policy because he should have known better, said the board.

It also wasn’t important whether anyone present was offended or that it took place on a break and not during work hours, said the board, but rather that ThyssenKrupp had an interest in preventing employees from engaging in horseplay and stunts in the workplace. The company’s business was in elevator installation — which is a safety-sensitive industry, both for employees and customers — and its reputation was jeopardized by such misconduct, said the board.

The seriousness of the mechanic’s misconduct also superseded any other factors, such as his lack of previous discipline and the workplace culture. There was no evidence the company was aware of other pranks and his role as the principal offender wasn’t diminished by the culture, said the board.

In dismissing the mechanic’s grievance, the board found ThyssenKrupp’s decision to terminate the mechanic’s employment demonstrated it would not tolerate the kind of behaviour he exhibited, which was necessary given the pattern of escalating pranks and horseplay at the construction site.

“If (ThyssenKrupp’s) employees want to emulate the principals 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),” said the board.

For more information see:

I.U.E.C., Local 50 v. ThyssenKrupp Elevator (Canada) Ltd., 2011 CarswellOnt 7404 (Ont. Lab. Rel. Bd.).

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