Employer liable for Twitter misuse, The Law Times (October 3, 2016, p. 7)

05 Oct Employer liable for Twitter misuse, The Law Times (October 3, 2016, p. 7)

EMPLOYER LIABLE FOR TWITTER MISUSE
By Nikolay Y. Chsherbinin

Twitter is a public social media platform that allows people to create content and share it at a prodigious rate. Its users’ comments, known as tweets, are particularly effective in spreading their sentiments. Increasingly, companies mine Twitter for information about their services and products.
Employers and unions mine it too, albeit for different reasons.

A case in point is Toronto Transit Commission and ATU, Local 113, [2016] OLAA No. 267, where Arbitrator Howe found TTC liable for failing to protect its employees from harassment and discrimination on Twitter. This novel decision augments employers’ duty to take reasonable steps to protect its employees form cyber harassment.

In TTC, the union filed a grievance challenging TTC’s use of its Twitter account, publically known as @TTChelps. It asserted that TTC’s conduct is contrary to its obligation to provide a workplace that is safe and free of harassment. In support, the union produced tweets, which were critical of the manner in which TTC employees perform their duties and contained derogatory, offensive, abusive, racist, homophobic, sexist and/or threatening language. It suggested that TTC allowed @TTChelps to become a vehicle of harassment and asked the Arbitrator to terminate it.

In response, TTC argued that its employees do not have the right to be free from public complaints, because they provide public service that is partially paid for by tax dollars. Consequently, they should be accountable to the public and it is anti-democratic to suggest that the public does not have the right to complain about TTC’s employees. The union retorted that it is inappropriate for TTC to be taking complaints about employees through @TTChelps or discussing what are, in essence, private matters on Twitter. By doing so, TTC is using Twitter as a surrogated public complaint process, thereby circumventing the public complaint process bargained for by the parties. Further, the union successfully argued that whenever TTC uses Twitter for public communication about the conduct of employees in the workplace, that sphere becomes part of the workplace, which in turn triggers TTC’s obligation to control it.

Sections 5(1) and 5(2) of the Ontario Human Rights Code give every person a right to freedom from discrimination with respect to employment and harassment in the workplace, because of race, ancestry, place of origin, colour, ethnic origin and, among others, sexual orientation. Adjudicators and the courts have held that an employer is liable not only for its own acts, but also those of its customers, agents, visitors, guests and employees. While it is not possible for an employer to prevent all inappropriate behaviour, it does have control over how it responds to discriminatory or harassing conduct in the workplace, regardless of how it occurred.

A number of tweets that the union presented called a TTC employee offensive terms that referred to sexual orientation and race. Having found that TTC’s responses to offensive tweets were inadequate, the Arbitrator suggested that to deter people from sending such tweets, TTC should not only have indicated that it does not condone abusive, profane, derogatory or offensive comments, but should have requested the tweeters to immediately delete the offensive tweets and to advise them that if they do not do so they will be blocked. Ultimately, the Arbitrator found that the “TTC has failed to take all reasonable and practical measures to protect” its employees from harassment by members of the public, as required by the Code.

In an attempt to have @TTChelps terminated, the union argued that the privacy of TTC employees is invaded by tweets disclosing where they work, their employee numbers and details of complaints about their conduct. Having refused to shut down the TTC’s Twitter account, the Arbitrator explained that a TTC employee’s badge number is not private information, nor is the bus number that a TTC employee is driving or the route number on which it is being driven, because in the context of an employee who works in public providing a public service, there is no reasonable expectation of privacy regarding that information. Eliminating @TTChelps would not preclude information of that type from being posted on social media.

The Arbitrator also pointed out that @TTChelps permits the TTC to provide useful information to customers. However, he cautioned that care needs to be taken to ensure that the information provided @TTChelps is accurate and does not include inappropriate editorializing. The Arbitrator ordered TTC to refine its social media policy, which, should include templated responses to tweets, a statement that TTC does not condone abusive, profane, derogatory or offensive comments and, among others, demand that the tweeters immediately delete the offensive tweets or they will be blocked.

TTC further expands the notion of workplace into cyberspace and affirms that employers have duties and obligations regarding their use of social media, just as employees so. While TTC was decided in a unionized context, its conclusions are applicable to non-unionized workplaces. Prudent employers, who use Twitter, should have social media policy, which should include the Arbitrator’s suggestions, contain an obligation for an employee to report cyber harassment forthwith and spells out a manner on how to deal with harassing and discriminatory tweets towards their employees.

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