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back to index backAMERItalk September,  2016


Canada: Are employers responsible for protecting their employees on social media? "Yes" according to a recent decision

Does the workplace extend into cyberspace? In a precedent setting decision with potentially far-reaching implications, a labour arbitrator has found an employer liable for failing to protect its workers from harassment and discrimination in customer posts on the employer's Twitter account (Toronto Transit Commission and ATU, Local 113, 2016 CarswellOnt 10550). Employers using social media to communicate with clients, customers or the general public may need to rethink how to they respond to uncivil, abusive or threatening online posts targeting their workers.

The Facts

The case arose out the Toronto Transit Commission's (the "TTC") Twitter account which it established several years ago to respond to passengers' questions and concerns. The TTC is the third largest public transit agency in North America and operates subways, buses and streetcars throughout the City of Toronto. At the time the issues arose, the Twitter had about 16,000 followers and 82,000 tweets.

The union representing the TTC's workers filed a grievance demanding that the TTC's Twitter account be permanently shut down. While the union complained about breaches of worker privacy and the lack of workplace safety, the crux of the union's complaint was that the Twitter account created a platform for passengers to harass, demean and belittle TTC drivers, fare collectors and other workers. The union produced literally hundreds of "tweets" from passengers that were, in some cases, profane and abusive, and, in many others, racist, homophobic, threatening and discriminatory. The union alleged that years of complaints about the tweets went unaddressed by the TTC.

The TTC defended the grievance on the basis that were legitimate objectives for creating and operating the Twitter account. The TTC's social media coordinator testified at the arbitration hearing as follows:

"We have it because our customers expect us to have it. Social media is incredibly important and continues to grow. Customers expect to be served through the channel of their choice. Different generations expect different experiences so we're being responsive to what our customers want. Having the [Twitter account] allows customers to contact us from their smart phones wherever they are and at any time, so by us having that presence we're easily accessible. It allows us to interact with customers one-on-one. It can be immediate so it allows us assist someone who is experiencing an issue right then and there. We can clarify, provide additional information, and deescalate situations. We reduce frustration for our customers and reduce frustration employees are experiencing….. As well, [the Twitter account] builds trust with our customers. They see we're visible and present. Our responses are transparent. We have nothing to hide."

Further, the TTC's position was that it was impossible to regulate the dialogue taking place on social media and therefore there were no reasonable steps that the TTC could have taken to address the offensive tweets. The TTC's argument was summarized in the following terms:

"….. it 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."

The Decision

The arbitrator upheld the union's grievance. While the arbitrator agreed that it would be difficult, if not impossible, for the TTC to regulate dialogue on social media platforms like Twitter, that was not a defence to workplace discrimination or harassment.

According to the arbitrator:

- an employer can be liable not only for its own acts of discrimination or harassment, but may also be liable for the acts of third parties, such as customers;

- in the case of harassment or discrimination by third parties, it is the employer that has the greatest control over working conditions and therefore has a duty to intervene;

- an employer may not be able to control the remarks or actions of a third party, but the duty of intervention requires that an employer take all reasonable measures to prevent harassment or discrimination by third parties; and

- an employer that does not address acts of discrimination or harassment by third parties, such as customers, may be liable under occupational health and safety legislation, anti-discrimination legislation and, in the case of unionized workplaces, under the applicable collective labour agreement.

While the arbitrator declined to order the TTC to shutdown the Twitter account, he did order the TTC to create a social media policy that would allow it to effectively address inappropriate tweets made to the Twitter account. According to the arbitrator, the policy should make it the responsibility of the TTC to:

- monitor the Twitter account;

- advise offensive tweeters that the TTC does not condone abusive, profane, derogatory or offensive comments;

- demand that the tweeters immediately delete any offensive tweet or face being permanently blocked from the Twitter account;

- if the response does not result in the offensive tweet being immediately deleted, the TTC should immediately block the tweeter; and

- seek the assistance of Twitter, as necessary.

A New Standard for Employers?

Most companies have a social media presence and many handle client and customer complaints through Twitter accounts.

Although decided in an arbitration context, the principles of this case can readily be applied outside of a union environment. As such, this case can be viewed as extending a duty to all employers with a social media presence to take reasonable steps to address harassing or discriminatory posts made by customers and the general public against workers. The failure to address harassment or discrimination on social media may result in liability. With the workplace extending further and further into cyberspace, employers with a social media presence should monitor their social media platforms and consider whether workers may be exposed to harassment or discrimination via these platforms. Employers should also review their existing policies to ensure that they appropriately define acceptable use and establish how to deal with harassing and discriminatory posts against workers.

Source: Baker McKenzie - GAI





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