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Reuired: (i) Develop your written part by answering the six questions given in the case.
Each question may be answered in about 150 to 200 words.
(ii) Develop a PowerPoint presentation. You have to take one side, either the company
ThyssenKrupp or the fired employee. If you decide to represent ThyssenKrupp, then you
are the defense lawyer. If you decide to represent the fired mechanic, you are the Plaintiffâ€™s
Lawyer. Present your arguments with evidences and supporting matter to the Judge (Raj
Mohanty) via a Power Point presentation. In a courtroom, the Judge is always addressed as
â€œMe Lordâ€ or â€œYour Honorâ€.
ThyssenKrupp Elevator Canada
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?
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 â€œmachoâ€ 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 â€œpickingâ€ 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 paymentâ€”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, â€œWhat are you going to do
with that? Why don’t you staple your nuts to something?â€ The mechanic jokingly replied that he’d
do it â€œif you get enough money.â€
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 â€œcheering and high fives,â€ 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 patchesâ€”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 notâ€”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 â€œpractical jokes of a
sexual nature which cause awkwardness or embarrassment.â€ The mechanic was fired for â€œa flagrant
violationâ€ 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.
In July 2011, the OLRB found the mechanic’s misconduct on the employer’s premises, plus his
permission to record it, â€œpatently unacceptable in almost any workplace.â€ 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 irrelevantâ€”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 â€œnot during work hours.â€
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,
â€œIf (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).â€
(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?
(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,
(3) Are there any Tort issues involved here? What other legal issues are involved here? Explain.
(4) Did the Ontario Labour Relation Board (OLRB) accept the defense that organizational
culture contributed to the employee behaviour? Explain their reasoning. Considering the
companyâ€™s work environment, what factors need to be considered while updating the
companyâ€™s health & safety policy?
(5) If this case goes to court, what arguments the Plaintiffâ€™s Lawyer, representing the fired
worker, would present before the court?
(6) What would be the line of Defense for the Lawyer of Thyssen Krupp Elevator?
Your answers must be neatly typed with single-spacing and standard 12 Font-size. These are
general guidelines. Quality of your answers is of critical importance, not the number of words
used. The assignment should be carefully worded and professionally presented to the Professor
by the due date. You must understand that plagiarism is an offence and will be seriously dealt
with as per the department policies. Develop the answers using your own words. Therefore, any
reference materials or sources of information used should be properly referenced in your assignment. Do not copy from your textbook, Internet or other resources.