The Ontario Arbitration Decision in Toronto Transit Commission and ATU, Local 113, 2016 CarswellOnt 10550
The Amalgamated Transit Union, Local 113 (the “Union”) brought a grievance against their employer, the Toronto Transit Commission (“TTC”) seeking that the TTC’s Twitter account be permanently shut down.
The Union’s argued that the TTC’s Twitter account created and fostered an avenue for passengers and other members of the public to denigrate, threaten and harass TTC employees. The Union also argued that the complaints by TTC employee about the hundreds of tweets (which were produced as evidence) were never addressed by TTC. Many of the tweets in issue were abusive, homophobic, racist, sexist, discriminatory and threatening.
The TTC argued social media, including Twitter was a vital tool that customer have come to expect and rely on. It was further stated that the TTC Twitter account allows customers to have direct contact with TTC and allows for service updates on an immediate basis. The TTC reasoned that:
[I]t is not possible for an employer to prevent all behavior that amounts to harassment or disrespectful behavior towards employees, and that there are very real limits to the power of an employer to anticipate and control such behaviour. (para 112)
The Arbitrator was tasked with determining the following:
- Was the Union’s grievance valid?
- If the Union’s grievance is upheld, should TTC’s Twitter account be permanently shut down?
ONTARIO ARBITRATION DECISION
The Arbitrator found that the Union’s grievance was valid because, while the Arbitrator acknowledged that it would be difficult for the TTC to regulate the dialogue on Twitter and its other social media presences, it was not impossible. The Arbitrator further noted that this difficulty of regulating the dialogue is not a defence to workplace harassment or discrimination. Meaning, TTC and other employers may be liable for harassment or discrimination by third parties, such as their customers. The Arbitrator found that an employer has a duty to intervene when third parties are harassing or discriminating again their employees because they have the greatest control over the workplace environment and conditions. This duty involves a requirement of an employer to take all reasonable steps and measures to prevent harassment or discrimination of employees by third parties.
The Arbitrator also noted that an employer who failed to discharge their duty to intervene may be liable under the Ontario Human Rights Code, R.S.O. 1990, c.H.19; the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1; and in cases such as this were a union exist under, the collective agreement.
However, the Arbitrator did not agree with the Union that the TTC’s Twitter account should be removed, permanently or otherwise as it had not been proven to be necessary or appropriate at the time. The Arbitrator noted that the TTC Twitter provides useful information to customers, particularly in comparison to the small umber of offensive tweets received. The Arbitrator did order the TTC to create and implement a new social media policy that would more effectively allow the TTC to address inappropriate tweets, which may be harassing or discriminatory to their employees. For example, the policy should include TTC advising harassing or offensive tweeter that TTC does not condone abusive, profane or derogatory comments. The Arbitrator further advised that it may be beneficial for both parties to create mutually acceptable guidelines with respect to templated responses to be used on TTC social media platforms.
A social media presence is becoming increasing common in and essential to effective business practice. However, employers who have a social media presence may need to consider and re-evaluate how they protect and respond to offensive or harassing posts from third parties. Although the above case summary is within a union context the principles are just as applicable in the non-union context. An employer may be liable if they do not address offensive post made on their social media platforms. It is advisable for employers to create or review existing workplace safety policies which include reasonable steps to prevent their employees from being exposed to harassment and discrimination as well as reasonable steps to address any harassing or discriminatory posts.