Canada: Social Media Account Is A "Workplace": Lessons For Employers Who Tweet

In a recent 35-page Ontario labour arbitration award that is likely to echo in other Canadian jurisdictions, Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, Arbitrator Robert D. Howe found that the Toronto Transit Commission (the "TTC") had failed to protect its employees from discrimination and harassment with regards to numerous posts from customers and the public on its Twitter account.

According to Arbitrator Howe, in light of the Ontario Human Rights Code (the "HRC"), the Ontario Occupational Health and Safety Act (the "OHSA") and the provisions of the relevant collective agreement, employees were entitled to a workplace free from discrimination and harassment.

By operating a social media account supporting two-way exchanges between itself and the public (as opposed to a one-way broadcast social media account) and by publicly answering customers' complaints through "tweets" with regards to its employees' alleged behaviour while on duty, the TTC's social media account could be "considered to constitute part of the workplace for purposes of determining whether the HRC, the [collective] agreement, and TTC policies [were] contravened as a result of harassment."

A reminder that modern employers using social media to connect with their customers and the public should not only enforce clear and consistent social media policies for their employees to follow, but also for themselves.

Facts and Parties' Submissions

In February of 2012 the TTC, the third largest public transit agency in North America, created a Twitter account — @TTChelps — in order to respond to passengers' questions and concerns by way of tweets.

In April 2013, the Amalgamated Transit Union, Local 113 (the "Union") filed a grievance against the TTC seeking, along with several other remedies, that the TTC's Twitter account be permanently shut down.

Evidence adduced during the hearing showed that as of late January 2015, the TTC's Twitter account had about 16,000 followers and had posted about 82,000 tweets. The Union identified roughly 1,500 problematic tweets which, in its opinion, were breaching workers' privacy and affecting their safety in the workplace, the argument being that the TTC's Twitter account became a platform for customers and the public to harass, demean and belittle TTC employees (drivers, fare collectors, etc.). At the hearing, the Union filed hundreds of profane, abusive, racist, threatening, violent, homophobic and discriminatory tweets, some of which contained pictures of TTC employees or reference to their badge numbers, along with responses sent to these tweets by the TTC. Three TTC employees (also Union members) testified for the Union and explained what negative impacts some tweets – some of which contained pictures of them – had on their personal and professional life. They also explained how the TTC's responses to these problematic tweets contributed to the problem rather than resolving the issue.

The Union argued that by responding to these tweets and by stating it did not condone them while failing to take any further action to have them removed, the employer was in fact condoning and encouraging these tweets to continue. Moreover, the Union argued that by tweeting responses such as "sorry to hear that" or "sorry for the experience" to tweets alleging employee misconduct, the TTC was giving the impression that what the customer complained about actually happened and that the TTC validated that the employee had done something wrong, thereby prioritizing the public's perceptions over its employees' perceptions.

The TTC's defence was based on several grounds: the impossibility for the TTC to regulate the dialogue taking place on social media and to prevent all behaviour that amounts to harassment or discrimination towards its employees; the TTC's limited ability to anticipate and control such behaviour from its customers and the public; since January 2014, the TTC's Twitter protocol had evolved in light of the Union's concerns and the TTC was no longer accepting complaints via Twitter, the tweeting complainant being directed to the complaint process; the TTC's objective to de-escalate situations by responding to tweets and addressing its customers concerns.

Most importantly the TTC argued, through the testimony of public sector media use expert, that in today's world "the use of social media is a necessary and beneficial component of contemporary public sector communications and citizen engagement strategies". With regards to the risks associated with social media use, the TTC argued that social media's usefulness offsets them where said risks are properly addressed by the employer. As the TTC's expert put it herself: "These risks come along with that so you just need to develop appropriate policies to mitigate them." However, with regards to the TTC experts' testimony on cross-examination, Arbitrator Howe reported the following:

"[O]ne of the risks of creating a public social media platform is that the government agency opens itself up to highly critical public criticism. She also indicated that government agencies that use Twitter should and generally do have policies regarding the use of social media, including how to respond to complaints received through it. She further indicated that government agencies seek to align those policies with their privacy obligations or other obligations to which they may be subject. [...] [I]t would be out of the norm for a public service provider to have a Twitter account without having such a policy." [emphasis added]

Although the TTC did not, in fact, have a specific social media policy addressing its use of social media, it argued that "its existing policies [were] sufficiently broad and robust to address any employee concerns [and] [t]herefore, it [was] not necessary to have a separate social media policy." The TTC concluded its defence by admitting the possibility of being ordered to supplement its current policies, but stressed that there was no basis for Arbitrator Howe to order it to shut down its Twitter account.

Decision

Arbitrator Howe upheld the Union's grievance, but refused to order the TTC to shut down its Twitter account. In his conclusions, Arbitrator Howe agreed with the TTC's contention that there were advantages to operating a Twitter account. He explicitly accepted the expert's testimony in respect to TTC's public sector media use in that "social media usage has grown rapidly in Canada at the municipal government level and has become an accepted mainstream practice [...]"; "use of social media, including Twitter, is a necessary and beneficial component of contemporary public sector communications and citizen engagement strategies for various reasons, including the fact that citizens want public service providers to use it"; "[i]n addressing the question of whether a public service provider should engage directly with the public through social media rather than merely providing information, [...] the literature on public sector social media use tends to frame one-way information provision as being more basic and primitive than uses which support two-way exchanges, with the latter being viewed as a more developed, mature, and beneficial use of social media."

With that said, although Arbitrator Howe agreed that it would be difficult, if not impossible, for the TTC to regulate dialogue on social media platforms like Twitter, this reality should prevent it from complying with its duty to prevent and address workplace discrimination or harassment.

The tweets adduced as evidence by the Union constituted harassment and discrimination on grounds prohibited by the OHSA and the HRC, as well as situations the TTC was required to address in light of the provisions of the collective agreement. In light of the evidence, Arbitrator Howe concluded it was clear that through its responses to abusive tweets from its customers and the public, the TTC had failed to take all reasonable and practical measures required by the HRC, the collective agreement and the Workplace Harassment Policy to protect its employees from harassment.

Arbitrator Howe's rationale with regards to the TTC's duties and responsibilities towards its employees can be summarized as follows: 

  1. In case of harassment or discrimination of its employees by third parties, such as customers or the public, an employer has a duty to intervene effectively to stop harassment since it exercises the greatest control over workplace conditions;
     
  2. Where an employer uses social media as a two-way exchange means of communication with its customers and the public in general, and where the latter make abusive or discriminatory remarks with regards to its employees, the employer's duty to address harassment and discrimination in the workplace can extend to social media platforms; 
     
  3. While an employer may not be able to prevent or control a third party's speech on social media, the employer does have control over how it responds to abusive language directed at its employees through its social media accounts and it has the responsibility to respond diligently and take reasonable steps to prevent harassment or discrimination by third parties;
     
  4. An employer that does not take reasonable steps to prevent harassment or discrimination directed towards its employees through its social media accounts may be liable under occupational health and safety legislation, anti-discrimination legislation, the employer's anti-discrimination and anti-harassment policies and, in the case of unionized workplaces, the applicable collective agreement.

Given the absence of a specific social media policy governing the TTC's use of its Twitter account to respond to inappropriate tweets from customers or the public and directed towards its employees, Arbitrator Howe invited the TTC to create such a policy and invited the parties to work together in establishing said policy. With that said, in his findings, Arbitrator Howe provided the following guidelines with regards to what should be included in such a policy in order to comply with the applicable legislation and the terms of the collective agreement: 

  1. To deter people from sending inappropriate tweets, the TTC's responses to such tweets "should not only indicate that the TTC does not condone abusive, profane, derogatory or offensive comments, but should go on to request the tweeters to immediately delete the offensive tweets and to advise them that if they do not do so they will be blocked. If that response does not result in an offensive tweet being deleted forthwith, @TTChelps should proceed to block the tweeter";
     
  2. "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 TTC should continue to be permitted to use @TTChelps";
     
  3. The approach suggested above should also apply in cases where customers or members of the public post pictures of TTC employees in their tweets, regardless of whether inappropriate comments are posted with the picture;
     
  4. "[W]hen @TTChelps receives a tweet alleging misconduct by a TTC employee its response should simply be that complaints cannot be filed through Twitter and that customers wishing to file a complaint can do so by [placing a call at a specific phone number or consulting a specific website]"; inappropriate tweets allege misconduct on the basis of an obvious misperception from the customer or the member of the public, which might usefully be corrected through a templated response;
     
  5. When inappropriate tweets allege misconduct on the basis of an obvious misperception from the customer or the member of the public concerning the behavior or responsibilities of an employee while on duty, it may be useful for TTC employees responsible for monitoring TTC's Twitter account and responding to such tweets to use templated responses. In doing so, they should refrain from including "inappropriate editiorialising" such as the inclusion of words like "unfortunately" (e.g. "unfortunately, operators are not required to assist a mother in getting her stroller onto a streetcar");

Far-Reaching Implications of This Arbitration Award in Other Canadian Jurisdictions

In a world where social media is becoming an essential component of employers' business activities, both in the public and in the private sectors, this case may very well be the first of numerous cases to address the extent of employers' responsibilities and liabilities with regards to social media use in the context of legislation aimed at protecting employees from abusive behaviour from customers or the public in general.

Although Arbitrator Howe's decision was rendered in the context of specific Ontario statutory provisions – the Ontario HRC and OHSA preventing discrimination and harassment in the workplace – as well as on the terms of the collective agreement between TTC and the Union, the principles discussed in this case would likely be in tune with anti-harassment and anti-discrimination legislation currently in force in other jurisdictions. For example, the duties and responsibilities of Ontario employers in light of the anti-discrimination and anti-harassment provisions of the Ontario HRC and OHSA at issue in this arbitration award are similar to the duties and responsibilities of Québec employers under the Québec Charter of Human Rights and Freedoms and the Act Respecting Labour Standards.

For the time being, employers who are active in social media through company or institutional accounts should carefully and regularly monitor postings from customers and the general public and take the time to address any issue regarding derogatory or discriminatory comments and/or posting of pictures of their employees. Although an employer may be tempted to ignore such issues altogether, they should bear in mind that Arbitrator Howe's findings in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission suggest that inaction may lead to liability where harassment or discrimination towards employees occurs though the employer's social media account. Also, employers should take care to implement or update social media policies in order to properly standardize applicable procedures when responding to derogatory postings concerning their employees or postings containing pictures of their employees, as such policies may very well soon become an integral part of their workplace policies, along with anti-harassment and anti-discrimination policies.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Devry Smith Frank LLP
Norton Rose Fulbright Canada LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Devry Smith Frank LLP
Norton Rose Fulbright Canada LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions