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Date:
2011.10.20

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THE EMPLOYERS' EDGE

Single Incident of Workplace Misconduct Can be Just Cause for Dismissal

A progressive discipline approach is a common practice used by employers to correct negative behaviour. It is a system where disciplinary penalties increase upon repeat occurrences, culminating in dismissal for just cause as a last resort. Judges and adjudicators alike have been hesitant in upholding dismissals where employees have otherwise had clean disciplinary records prior to the incident giving rise to the dismissal. The recent case of International Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd, [2011] CanLII 46582 (ON LRB) is an exception to this general approach. Taking into consideration factors such as the employer’s tarnished reputation in a safety sensitive construction industry, culminating incidents of horseplay and pranks by other employees, and the egregious nature of the employee’s conduct in what could be described as a quintessential “Jackass” moment, the Ontario Labour Relations Board upheld an employee’s termination based on one incident of misconduct, despite his otherwise untainted employment record.

In the ThyssenKrupp case, the grieving employee was discharged from employment following a video posted on the internet of the grievor with his genitals exposed and then stapled to a 4 x 4 wooden plank in the lunchroom at a jobsite. The termination letter described the employee’s conduct as a flagrant violation of the Workplace Harassment Policy, which put the reputation of the company at risk. The grievor admitted that he knew his prank was being recorded and in his defence, described the lunchroom as an “all male” environment, where a culmination of a series of pranks, jokes, dares, and horseplay had been ensuing for several weeks. It was made known that the employees at the jobsite often watched the show  “Jackass” which involves young men recording themselves doing “stupid” activities in exchange for money.  The grievor tendered evidence at the hearing that workers had been participating in “one upmanship” competition in the workplace in the form of bets for money, where a pattern of pranks had escalated to stunts akin to the ones pulled on Jackass episodes.

Although there was no evidence to the contrary that the harassment policy was ever brought to the grievor’s attention and the grievor admitted that his behavior was inappropriate after the fact, the Board held that any reasonable employee would have recognized that this type of conduct was patently unacceptable in any workplace, particularly where the employer involved could be easily identified in the video. The Board noted that once the video entered public media via the internet, it significantly prejudiced the reputation of the employer. The video became notorious amongst general contractors and others in the construction industry when it became the subject of discussion at a construction industry labour relations conference attended by many general contractors, labour relations associations and employees in the construction industry. Although the employer did not to take steps to discipline others for their role in the grievor’s stunt and the grievor’s employment record remained unblemished up until this incident, the Board noted that the employer’s business reputation as a safety conscious elevator contractor with a highly skilled and competent workforce could genuinely be prejudiced by the grievor’s conduct and was therefore enough to tip the scales in favour of the employer.

The ThyssenKrupp case sends a clear message: one egregious incident in the workplace is sufficient to justify the dismissal of an employee for just cause. To effectively address incidents such as these, it is important to implement a workplace harassment policy and to ensure that employees are made aware of its significance. The lawyers at CCP can assist employers in developing and implementing harassment and progressive discipline policies as well as assist in assessing the strength of a just cause dismissal.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

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