ON Company Can Fire Worker for Video of Dangerous Workplace Prank

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When it comes to disciplining workers, the accepted approach is the use of progressive discipline in which the level of punishment increases each time the worker commits another infraction, culminating in termination. As a result, courts and boards will rarely uphold the firing of a worker with no disciplinary record at all. But if the worker’s conduct was particularly egregious, they may rule that the employer was justified in getting rid of him immediately. A recent case from Ontario is a good example of a worker’s conduct that was so beyond the pale that his termination was upheld despite his otherwise clean record.

THE CASE

What Happened: Inspired by the TV series Jackass, workers at a construction site engaged in an escalating series of dares and stunts in the site’s lunchroom. The culmination: a worker bared his genitals and allowed his scrotum to be stapled to a wooden plank—all of which was videotaped. The “stapling video” was posted online and soon became infamous in the construction industry in the area. When the company learned about the video, it fired the worker for violating its harassment policy, which barred pranks of a sexual nature.

What the Board Decided: The Ontario Labour Relations Board upheld the worker’s termination.

How the Board Justified the Decision: The video was shot in the workplace (although not during work hours) and in the presence of co-workers. Although the worker wasn’t responsible for posting the video online, he should’ve known that’s what would happen. And his dangerous conduct violated not only company policy but also OHS law, which bars workers from engaging in pranks in the workplace. The court rejected the worker’s argument that shows like Jackass had changed “the norms of behaviour,” saying that this explanation doesn’t justify the conduct or make it acceptable in the workplace. The court concluded that permitting his scrotum to be stapled to a wooden board was inappropriate and “demonstrated a great deal of stupidity.”

To make things worse, the worker’s employer was readily identifiable in the video. So when it became well known to people in this safety sensitive industry, it undermined the company’s reputation as a safety conscious contractor with a highly skilled workforce. In fact, the “stapling video” was the topic of discussion at a construction industry conference.

The court concluded that the pattern of pranks this worker and others had engaged in could easily lead to more dangerous stunts in a workplace where safety should be paramount. The company had a duty to ensure a safe workplace. By firing the worker for this first offence, it clearly and appropriately demonstrated that it won’t tolerate this kind of behaviour at any of its worksites [International Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd., [2011] CanLII 46582 (ON LRB), July 28, 2011].

ANALYSIS

The workplace isn’t an appropriate venue for dangerous—and idiotic—stunts and pranks, not matter how much the workforce may enjoy them. The worker in the ThyssenKrupp case tried to argue that the workplace’s culture justified and excused his conduct. He said it was an all male environment in which workers regularly teased each other and engaged in jokes, pranks and dares. He pointed out that no one had objected when he’d performed his stunt and, in fact, they cheered him on in encouragement. Rightfully so, the court wasn’t impressed with these arguments. It made it clear that this kind of behaviour shouldn’t be tolerated in any workplace.