<i>Jackass</i>-style stunt leads to termination

Not knowing about employer’s standards of conduct doesn’t get employee off the hook for conduct that violates normal standards of common sense

By Jeffrey R. Smith

When it comes to an employer wanting to fire someone for misbehaviour or a violation of its standards of conduct, the first thing many employment lawyers will stress is how clear the standards have been made to employees.

It’s fine to have policies regulating codes of conduct and such, but when courts and arbitrators look at policy violation as just cause, they will examine whether the employer has communicated these policies properly. If an employer hasn’t done that, an employee can’t be expected to follow unknown standards.

Does that mean, if an employer’s policies haven’t been properly disseminated to employees, the employer automatically can’t dismiss employees for violating those policies? It would likely be difficult, but not impossible, particularly if the employee’s misconduct is so bad it violates not just the policies, but normal standards of common sense.

An arbitration decision handed down this past summer demonstrated just such a situation. A company had been subcontracted to install elevators in a new office building in Toronto. The company had policies outlining workplace harassment, including a prohibition of “practical jokes of sexual nature which cause awkwardness or embarrassment.”

Though it included the harassment policy in its package to new hires, the company didn’t have a process to ensure the employees read and understood it. Many employers require employees to sign a statement indicating they have read and understood such policies.

However, in the case of a particular elevator mechanic, the fact he had never read the company’s harassment policy didn’t really matter when he was fired for violating the policy. As it turned out, his behaviour was considered stupid and egregious enough to warrant dismissal.

The mechanic’s worksite was an all-male environment where many of the workers pulled pranks and were fans of the TV show Jackass. This led to a series of escalating stunts in which the mechanic, in a bid to collect $100 from his co-workers, dropped his trousers and stapled a certain part of his anatomy to a plank. He got the money but, unfortunately for him, the stunt was recorded and posted to the Internet. The employer found out about it and, after being questioned about it by others in the construction industry, fired the mechanic for violating its harassment policy.

Despite the fact the employee claimed not to know about the policy, the arbitration board determined that didn’t matter. The mechanic’s behaviour, it said, was ridiculous enough to violate basic standards and common sense regarding what was acceptable in the workplace, particularly since he knew he was being recorded and he was easily identifiable as an employee of the company.

So while effective communication of the employer’s policies and standards can make it a easier to find just cause, if an employee’s conduct is bad enough, he can’t hide behind ignorance of those policies.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at employment law from a business perspective. He can be reached at [email protected]. For more information, visit www.employmentlawtoday.com.

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