Don’t Get Tangled Up in Duct Tape: Lessons for Employers

By Ida Martin and Brian Smeenk

The City of Mississauga was recently embarrassed by a video of two of its employees duct-taped together. They were squirming around on a table, taped by their hands, torsos, and feet. This was apparently a routine employee hazing. It was leaked to the media by an employee who had had enough. The case provides a good lesson in how employers should not handle such situations.

The whistleblower was an employee at the City of Mississauga transportation and works department. In November 2009, when he just couldn’t take it any more, he made an internal complaint. The city hired an outside investigator who found that employees had been:

• duct-taped together as shown in the video;
• run through the car wash while duct-taped to the outside of trucks; and
• hit repeatedly in the groin, face, and ribs while bent over a table on their birthdays.

The supervisor of the group, Domenic Galamini, was found to have allowed and encouraged the behavior. One manager was quoted in the media as saying that spanking and humiliation had occurred on a weekly basis for years.

Surprisingly, the city chose not to fire or suspend anyone – not even Galamani. Some form of lesser discipline was given. It was found that the behavior was more in the nature of “horseplay” than abuse. The mayor was quoted, when asked why the supervisor wasn’t fired, as suggesting that dismissal wouldn’t be upheld “if the employees decide to take this to court.” So they scheduled a mandatory round of harassment and respect training for all those involved.

If this seems to you to be a light slap on the wrist for some pretty serious workplace behavior, you aren’t alone. Since the video and accompanying story were first published by CBC Radio on June 1, it has received widespread media attention. Many have expressed their disgust at both the behavior and at the leniency of the penalty.

Are there risks to employers who condone such behavior?
There are substantial legal risks to an employer who turns a blind eye to such behavior in addition to the obvious reputational risk. The legal risks relate to both statutory duties and general liability.

Under occupational health and safety laws, employers have a duty to provide a safe workplace to their employees. Condoning physical abuse or bullying may violate those laws and result in charges. In Ontario, a new bill – Bill 168—introduced specific provisions regarding workplace violence and harassment. It will come into effect June 15. It will require policies and programs to prevent such behavior.

The federal government also has regulations that require federally regulated employers to have antiviolence policies. Violence for that purpose includes the concepts of bullying, teasing, abusive, or other aggressive behavior. And Quebec has a law giving employees a process to seek remedies for psychological harassment. (For more details on these laws, see a previous post by Alix Herber on this topic.)

Human rights laws also may apply. If the victims of such harassment feel that they have been targeted because they’re members of a protected minority, a costly human rights complaint and hearing could well result.

Moreover, as shown in a recent decision by the Ontario Court of Appeal in Piresferreira v. Ayotte and Bell Mobility, an employer and/or manager may be subject to lawsuits for such behavior. Damages resulting from a lawsuit could include:

• damages for “constructive dismissal,” if the work situation has become untenable;
• damages for mental suffering resulting from the abusive manner of dismissal;
• damages for battery or assault;
• damages for the intentional infliction of mental suffering.

If the conduct is severe enough the perpetrators and accomplices could even face criminal charges.

And these are just the legal issues. Employers will also, of course, be concerned about maintaining a productive and healthy work environment as well as the organization’s reputation.

How can employers prevent and respond to these situations?
Well before any trouble starts, employers should have clear policies that speak to the organization’s firm stance against violence and harassment. (In Ontario and for federally regulated employers, these policies are now mandatory.) Such policies shouldn’t just be “on the shelf.” They should be brought to the attention of employees.

Training on what is and is not appropriate conduct in the workplace can be very helpful. The Mississauga case seems to prove that lots of people out there still “just don’t get it.” Be sure they do.

There should be a mechanism for employees to report inappropriate behavior. Encourage employees to use those mechanisms. Once you, as employer, become aware of any allegations of inappropriate behavior, investigate thoroughly. Get all sides of the story.

At the conclusion of the investigation, carefully consider what disciplinary and educational steps to take in light of the findings. Be prepared to hand out serious discipline against the perpetrators. And this must include any managers who condone such conduct.

The Mississauga case shows that an employer’s preventive measures against, and responses to, such incidents will significantly affect how third parties will assess your standards of acceptable workplace conduct.