An Arbitrator recently considered whether an employer’s social media presence could be defined as part of the “workplace” and the attendant employer obligations arising from such a finding in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (Use of Social Media Grievance). 

Facts

The Toronto Transit Commission (the “TTC”) set up a corporate Twitter account (@ttchelps) in February 2012 for the purpose of receiving and responding to the public’s customer service questions and concerns. Anybody with a Twitter account could include the handle “@ttchelps” in their tweeted message and the message would be seen by the administrators of the Twitter account. All tweeted messages could be seen by the public. The account was administered by employees in the TTC Customer Service Department.

Shortly after opening the @ttchelps account, the account began receiving various messages from the public regarding TTC employees that were discriminatory, profane and threatening.  The @ttchelps account would respond to these messages with template responses. Additionally, the TTC did not have a social media policy in place.

The Amalgamated Transit Union, Local 113 (the “Union”) filed a grievance on behalf of the employees in the Customer Service Department, stating that the TTC failed to protect them from messages that were akin to harassment, contrary to the TTC’s responsibilities under the Ontario Human Rights Code and the Ontario Occupational Health and Safety Act. The grievance requested that the Arbitrator issue an order that the @ttchelps account be shut down.

The employer argued that it could not regulate the messages sent to the @ttchelps account, and that interaction with the public via social media is “a necessary and beneficial component of contemporary public sector communications and citizen engagement strategies”.

The Award

The Arbitrator upheld the grievance, finding that harassing messages directed at an employer’s social media account constitute harassment in the workplace against the employees administering the employer’s account. Although the Arbitrator upheld the grievance, he did not deem it necessary to grant an order to shut down the @ttchelps account. Rather, the Arbitrator invited the parties to draft a social media policy that would better protect the employees from harassment. Part of that would be a policy to respond to discriminatory tweets with language advising that the TTC does not condone that type of language and if the offensive tweet is not deleted, that the account that sent the tweet would be blocked by @ttchelps. The Arbitrator also stated that the policy should include a provision that the TTC was “to seek the assistance of Twitter to have offensive tweets deleted.”

Takeaways

This grievance arbitration further outlines the breadth of employers’ obligation to take reasonable steps to protect employees from harassment, and of the related responsibilities of employers regarding their operation of public social media accounts. The content of this grievance award may be considered in jurisdictions beyond labour arbitration in other situations where an employer’s use of social media accounts may be considered. Employers should be aware that other legal adjudicators may agree that an employer’s social media account constitutes part of the workplace, and that employers are therefore required to protect employees administering that account.

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.