2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Use of Social Media for Operational Purposes: Should Employers Hang up the Hashtag?
A recent labour arbitration decision out of Ontario considers an employer’s obligation to protect its employees from harassment via an employer’s presence on social media.
The Amalgamated Transit Union, Local 113 (the “Union”) grieved the Toronto Transit Commission’s (the “TTC”) use of social media “to publish personal information”, “to receive and make complaints” and “to solicit public comment” with respect to Union members.
In a hearing that spanned twelve days over the course of more than two years, Arbitrator Robert D. Howe upheld the grievance finding that the TTC “failed to take all reasonable and practical measures to protect bargaining unit employees…by members of the community, as required by the [Ontario Human Rights Code], the [Collective Agreement] and the Workplace Harassment Policy”. The focus of the hearing and arbitration award was TTC’s use of the Twitter account, @TTChelps.
facts in this case are summarized generally, as follows:
- @TTChelps, one of the TTC’s Twitter accounts, is used to receive and respond to customer service questions and concerns;
- @TTChelps tweets are monitored on a rotational basis by six senior service representatives;
- Some of the tweets to @TTChelps were critical of the service being provided by the TTC or the manner in which TTC employees perform their work, and a small but significant minority of the latter contained language that was vulgar, offensive, abusive, racist, homophobic, sexist, and/or threatening;
- Upon receipt of an inappropriate tweet directed at an employee of TTC, @TTChelps generally sends a response indicating that it does not condone abusive, profane, derogatory or offensive comments, and asks the tweeter to please refrain from same;
- If the tweeter does not refrain from using profane or otherwise inappropriate language after being requested to do so, the user may be blocked, muted or ignored by @TTChelps;
- Union executive member, Rocco Signorile testified that he monitored @TTChelps after being approached by bargaining unit members who raised concerns with him about TTC allowing customers to use the account to make them feel bullied, harassed, intimidated and threatened;
- Mr. Signorile raised concerns about @TTChelps with the TTC’s Chief Operating Officer, who referred him to the TTC’s Executive Director of Corporate Communications, Brad Ross. Mr. Ross expressed the view that “you can’t stop the public from what they say on Twitter”; and
- Mr. Signorile also raised his concerns with the TTC’s Director of Employee Relations, who seemed concerned and asked if they could meet again later. However, after months with no further response, the policy grievance was filed by the Union.
Some of the objectionable tweets are set out in paragraph 29 of the decision. Suffice it to say, they were largely profane, generally derogatory and at times individualized to specific employees.
Analysis & Decision
Not surprisingly, a number of tweets made to @TTChelps were found to have constituted harassment pursuant to Ontario’s human rights legislation; many of the same tweets were also in violation of the TTC’s Respect and Dignity Policy which applied to employees as well as members of the public who use TTC’s services.
The arbitrator found that the TTC failed to take all reasonable and practical measures to protect bargaining unit employees from harassment [via the @TTChelps Twitter account] by members of the community. According to Arbitrator Howe, the TTC should have taken further steps to deter the public from sending such tweets. He proceeded to provide guidance to the TTC as to what would be a reasonable measure of protection in such a situation, stating that in addition to responding that the TTC does not condone abusive, profane, derogatory or offensive comments, it should request that the offensive tweets be deleted immediately, failing which, the tweeter will be blocked from the @TTChelps account. If the offensive tweet was not deleted immediately, @TTChelps should then proceed to block the tweeter from accessing the account. The arbitrator also indicated that it may also be appropriate for the TTC to seek the assistance of Twitter to have the offensive tweets deleted and, if Twitter was unwilling to provide such assistance, such a consideration may be a relevant factor in determining whether the TTC should continue to be permitted to use @TTChelps.
Despite the arbitrator’s findings, Arbitrator Howe declined to make an award to shut down the @TTChelps Twitter account. Interestingly, rather than provide a particular remedy in this case, the parties were provided with an opportunity to consult with each other about the next steps that should be taken based on the findings that were made in the decision. Arbitrator Howe encouraged the TTC and the Union to develop templated responses for the @TTChelps Twitter account and to develop mutually acceptable guidelines regarding when/what particular information should be provided in response to customer inquiries.
Takeaway for Employers
Arbitrator Howe’s ruling should not deter employers from engaging in social media, but rather should serve as a tool to guide employers on how to respond to harassment directed at its employees. In addition to a social media policy, employers should ensure that those employees, whose job it is to respond to social media comments from the general public, are adequately trained to identify and deal with such situations in a timely manner. Employers must also be willing to take steps to seek the assistance of social media service providers, where necessary, to remove offensive comments. Should a social media service provider be unwilling to provide such assistance, employers need to evaluate the viability of maintaining such an online presence.
Since this decision appears to be the first in Canada to address an employer’s obligation to protect its employees from harassment from the community via social media, it will likely be persuasive as this area of the law continues to develop.
Please click below for the full decision:
Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (Use of Social Media Grievance)