The Amalgamated Transit Union, Local 113 v. Toronto Transit
Commission (Use of Social Media Grievance),  O.L.A.A.
No. 267 decision deals with the use of social media in the
workplace, and to what extent employers are required to manage
their accounts in a way that protects their employees.
The employer created a Twitter account for the purpose of
communicating with customers regarding service inquiries and
concerns. Although most 'tweets' were legitimate
requests for information, the Arbitrator accepted that a minority
were vulgar, offensive, abusive, racist, homophobic, sexist, and/or
threatening. The union took issue with the employer's
handling of these 'tweets', alleging that the employer was
not doing enough to protect its employees. The employer's
general practice was to respond with information regarding the
formal complaints process.
The Arbitrator agreed with the union that the employer did not
take all reasonable and practical measures to protect their
employees from harassment. But the Arbitrator refused to
grant the union's request for an order requiring the employer
to shut down the Twitter account. Instead, the Arbitrator
suggested that the employer and the union should establish mutually
agreed upon strategies for dealing with the types of inappropriate
'tweets' addressed in the decision.
Of note for employers moving forward, the Arbitrator held that
social media sites such as public Twitter accounts can be
considered part of the workplace. This Ontario arbitration
decision provides an extensive consideration of the use of social
media in the workplace, and will certainly be considered in future
grievances on this topic, both in Ontario and elsewhere.
Written with the assistance of Tyler Raymond, articling
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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