November 9, 2016 By: Stephanie Lewis
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Nelligan O’Brien Payne gratefully acknowledges the contribution of Victoria Craine, Student-at-Law in writing this blog post.

Rage typing. I do it all the time. I actually find it quite therapeutic. Something offensive happens and I pound my keyboard into submission with my fingertips, using sentences that are replete unsavoury descriptors and requests for redress of some indescribable wrong. Thankfully, I then “save as draft”, let the steaming document sit for a while and edit it to something resembling calmness.

However, this sober second thought is seldom applied by tweeters, who have the opportunity to rage type and post incendiary comments as they happen. It’s amazing how many ways there are to write offensive things in 140 characters. And don’t get me started on hashtags. #isthatfunnyormean #itsjustmean #reallymean #ouch

In a recent labour arbitration, an employer was held responsible to protect its employees against such flaming tweets and other forms of harassment via social media. The decision in Toronto Transit Commission and Amalgamated Transit Union, Local 113, required the Toronto Transit Commission (“TTC”) to take steps to protect its employees from online abuse occurring on its @TTChelp Twitter account. (Yes, you read that correctly. An arbitrator held that an employer had to protect bus drivers not only from the ungodly amount of abuse they receive in person, but also from the abuse levied at them by angry, semi-anonymous Twitters with righteous indignation in their fingers.) While this type of protection was long overdue in our modern electronic world, it illustrates the movement toward greater protection for employees from workplace harassment via social media. Specifically, it outlines an employer’s legal obligation to protect employees from harassment in relation to an employer-created social media account.

This decision was born of the TTC’s choice to join the modern world and use social media to connect with their customers and the public. In 2013, the Amalgamated Transit Union, Local 113 (“Union”) filed a grievance against the TTC with respect to the TTC’s @TTChelp Twitter account. The account was created to support two-way exchanges between the TTC and the public in order to respond to customers’ requests for information regarding service. While many tweets directed at the TTC were of this nature, others were critical of the service being provided or the manner in which the TTC employees performed their work. Note: the use of the word “critical" was diplomatic, if not generous. The tweets included language describing the drivers as “the rudest people on the planet”, “grumpy bastards” and “phsycho” (spell check is clearly not an essential characteristic of rage typing!). This selection is among the least offensive comments included in the grievance. A portion of the tweets contained language that was vulgar, offensive, abusive, homophobic, sexist, and/or threatening.

In response to such posts, the TTC representatives did one of the following:

  • Ignored offensive language and advised the tweeter to contact them via telephone or website;
  • Expressed empathy and acknowledged how the customer was feeling and then provided information on how to file a complaint;
  • Asked the tweeter to refrain from using offensive language and to elaborate on what happened; or
  • Stated that the TTC does not condone abusive, profane, derogatory, or offensive comments.

Among the responses, my sad favourite was when customer service responders would encourage members of the public to approach their drivers if they thought they were hot. (Read: attractive, not warm.) Encouraging sexual harassment. Hrm…

In their grievance, the Union argued the TTC’s conduct was contrary in a number of ways to its obligation to provide a workplace that is safe and free of harassment. First, the TTC used social media in a manner that was intended or known to have the effect of soliciting confidential private information about employees. The TTC’s Twitter account allowed for public discussion regarding private matters between employer and employee. Second, the TTC’s Twitter account acted as a forum for unsatisfied members of the public to harass TTC’s employees. Finally, the TTC provided inadequate responses to such comments.

The TTC argued an employer has a right to establish a social media presence through a Twitter account for the purpose of communicating with the public and its users. As such, the TTC took the position that it is unreasonable to conclude that no employer can use social media as a means of communication because of potential for concerns. In fact, if this approach were to be taken en masse, modern advertising and social media outreach by companies would be severely curtailed. Further, the TTC argued that what members of the public post on social media cannot be controlled.

In upholding the Union’s grievance, Arbitrator Howe determined that the TTC had failed to take all reasonable and practical measures to protect employees from harassment in relation to the Twitter account. The Arbitrator reasoned that in light of Ontario’s Human Rights Code and human rights jurisprudence, employees are entitled to a workplace free from harassment from fellow employees as well as non-employees, such as guests and/or customers. According to Arbitrator Howe, the TTC’s Twitter account could be considered part of the workplace for the purposes of determining whether the Human Rights Code, the collective agreement and TTC polices were contravened as a result of harassment. This holding implies that the definition of a “workplace” can extend to an employer’s online social media presence.

The Arbitrator suggested an outline as to what an employer should do to deter members of the public from posting harassing tweets:

  1. Indicate that the employer does not condone abusive, profane, derogatory or offensive comments;
  2. Request the tweeters to immediately delete the offensive tweets and to advise them that if they do not do so they will be blocked;
  3. If the offensive tweet is not deleted, the employer’s twitter account should block the tweeter; and
  4. In some circumstances, it may also be appropriate to seek the assistance of Twitter in having offensive tweets deleted. If Twitter is unwilling to provide such assistance, this may be a relevant factor for consideration in determining whether the employer should maintain its Twitter account.

Notably, the Arbitrator did not find it appropriate to shut down the TTC’s Twitter account because it permits the TTC to provide useful information to others. The Arbitrator further reasoned that the relatively small number of offensive tweets can be reduced, if not totally eliminated, by implementing the aforementioned measures, as well as developing a social media policy.

To the collective relief of employees and perhaps the chagrin of some social media savvy employers, this decision demonstrates that employers have the legal obligation to regulate offensive comments made online in relation to their social media accounts.

For more information about social media in the workplace, contact our Labour Law Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law