Imagine, for a moment, the most ridiculous act of self-harm that an individual could do himself. Did you imagine stapling your scrotum to a 4 x 4 wooden plank? Because someone actually did that, and it partially speaks to why your business of organization needs a social media policy.
By now the facts of the 2011 Ontario Labour Relations Board case of International Union of Elevator Constructors, Local 50 v ThyssenKrupp Elevator (Canada) Ltd, 2011 CanLII 46582 (Ont. L.R.B.) should be notorious:
ThyssenKrupp dismissed an employee from employment when a video posted on the internet showing him with his genitals exposed and his scrotum being stapled to a 4 x 4 wooden plank came to its attention.
The employee was employed as an elevator mechanic by ThyssenKrupp. The employer had assigned the employee, together with several other employees, to work at a large office building new construction project on Wellington St. West in downtown Toronto. ThyssenKrupp was a subcontractor to PCL Construction, the general contractor at that project. It was apparent from the video the employee and several others in the video were employees of ThyssenKrupp who were working at a PCL Construction site. The dismissed employee wore his ThyssenKrupp shirt in the video.
The employee was dismissed for violating the company’s Workplace Harassment policy; his genitals having been exposed for an extended period of time.
In upholding the dismissal OLRB Vice-Chair Harry Freedman wrote what many must be thinking:
… simply because some men like the Jackass principals are prepared to engage in grossly stupid behaviour and then attempt to profit from their stupidity through television, internet videos and movies, or like the grievor by taking bets on whether they will actually engage in that sort of conduct, does not mean that kind of behaviour ought to be tolerated in the workplace, even if it takes place outside of working hours during employees’ lunch or break periods.
I am prepared to assume, without deciding, that the grievor was unaware of the details of the responding party’s workplace harassment policy and therefore need not determine whether his conduct was contrary to that policy. In my view, any reasonable employee would recognize that exposing one’s genitals and having one’s scrotum stapled to a 4×4 wooden board on the employer’s premises and permitting that conduct to be recorded on a video is patently unacceptable in almost any workplace particularly when the employer of the employees involved can be easily identified. An employer, in my view, need not establish and promulgate a policy prohibiting that kind of behaviour. (Paras. 30-31) [Emphasis added.]
To the point of why a social media policy is necessary for employers, Vice-Chair Freedman added:
The responding party is engaged in a safety sensitive industry. The incident occurred at a major construction project in downtown Toronto. It was clear the employees were engaged in pranks and horseplay that culminated in the incident for which the grievor was discharged. In these circumstances, and in view of the evidence about the notoriety of the video among general contractors and others in the construction industry, I am satisfied the responding party has demonstrated real prejudice to its reputation as a safety conscious elevator contractor with a highly skilled and competent workforce. In my view, an elevator contractor that is believed to tolerate pranks and horseplay in the workplace is at significant risk of having its business reputation damaged. A general contractor or owner might well have second thoughts about having elevators installed by individuals associated with a workplace where employees engage in stunts and horseplay and are proud to have done so. (Para. 34) [Emphasis added.]
Examples such as that of the ThyssenKrupp case abound. Just this week a story broke about a St. Louis Applebees’ employee who was terminated after posting to the internet a picture of a customer’s complaint about the automatic application of 18% gratuity. In a statement from Applebee’s president Mike Archer responding to the incident, the company president wrote that:
…the guests who visit Applebee’s… expect and deserve to be treated with professionalism and care in everything we do. That is a universal standard in the hospitality business. That includes respecting and protecting the privacy of every guest, which is why our franchisees who own and operate Applebee’s have strict policies to protect personal information — even guest’s names.
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