Tuesday, November 08, 2016

Duty to Protect Workers from Harassment Through Social Media

An employer has a duty to protect workers from harm and harassment in the workplace. In a most unusual decision on this issue, an arbitrator in Ontario recently found the Toronto Transit Commission (“TTC”) should have taken additional steps to protect its workers from harassment by the public through a Twitter account that the TTC controlled. In Toronto Transit Commission and ATU, Local 113 (Use of Social Media), Re 2016 CarswellOnt 10550 a grievance was filed by the union against the employer TTC. Twelve days were devoted to the hearing. Six persons were called as witnesses.

The TTC’s social media presence includes a corporate Facebook page, a YouTube channel, and two Twitter accounts: @TTCnotices, which commenced operation in January of 2009 and is used by the TTC’s Transit Control to provide service updates, reminders, and information about service issues; and @TTChelps, which commenced operation in February of 2 012 and is used to receive and respond to customer service questions and concerns.

The Union’s concerns about the Employer’s use of social media pertained primarily to @TTChelps. Anyone with a Twitter account can send a tweet to @TTChelps by including “@TTChelps” in a tweeted message. Those tweets are monitored and responded to by six senior service representatives employed in the TTC’s Customer Service Centre (the “CSC”),

@TTChelps replies to numerous tweets from users each day. Each of those replies is tagged to the individual user to whose tweet @TTChelps is responding. Some of the tweets received by @TTChelps are complimentary. However, others are critical of the service being provided by the TTC or the manner in which TTC employees perform their duties. As indicated below, replies sent by @TTChelps to tweets that are critical of TTC employees or service often include phrases such as “sorry to hear that”, “that’s not good”, and “that was not nice at all”.

Some of the tweets are aggressive, profane and derogatory. Some of these can be considered harassing. TTC customarily tweets a response such as “We are here to help, however discriminatory or abusive comments are not condoned”.

A Union representative testified that bargaining unit members feel that they are just punching bags for the public and that the TTC does not care about them. He also testified that they are angry the TTC is allowing this to occur, that they are under enormous pressure, and that the negative stigma that they feel is overwhelming.

Other responses in the tweets introduced into evidence in the proceedings included: “I can see that you are frustrated but please refrain from derogatory comments towards our employees”;
“I can see that you are frustrated but please refrain from abusive language and personal attacks on our employees”; “We understand you may be upset, however please refrain from personal insults”; “The TTC does not condone abusive or offensive comments”; “If you would like our help pls refrain from using that language”; “We understand your frustration but pls refrain from profanity”; “Can you please refrain from using vulgarity and elaborate on what happened?”; “Pls let me know what is upsetting u and I’ll try to help but, pls refrain from the foul language - it is not acceptable”; “Please refrain from the offensive language. Please call 416-393-3030 or go here: ow.ly/AlhFc to submit complaint”; “Please refrain from making these types of comments when making a report. Please provide details location & vehicle#”; “Please explain what happened”; “I’m sorry it happened, but employee complaints have to be taken off line”; “Sorry to hear, call us at 416-393- 3030 if you want to discuss further”; and “Sorry to hear, I hear your frustration, however in order for me to assist may I please ask that you refrain from using profanity”.

If a tweeter does not refrain from using profane or otherwise inappropriate language after being requested to do so by @TTChelps, the tweeter may be blocked, muted or ignored by @TTChelps. Blocking and muting are both features of Twitter.

The arbitrator was asked by the Union to order a shut down of @TTChelps. Counsel for TTC had retained a social media expert, Amanda Clarke who testified that:

A range of public sector organizations in Canada have been integrating social media into their communications and stakeholder engagement functions. It is primarily used by those organizations to deliver information through relatively static one-way communication, rather than being used in a consultative or interactive manner. Twitter is the social media tool most commonly used by governments in Canada, although they also make use of other social media tools such as Facebook, YouTube, and Flickr. Social media usage has grown rapidly in Canada at the municipal government level, and has become an accepted mainstream practice. By April of 2010 approximately 25 Ontario municipalities had developed social media presences, but by April of 2012 that number had increased by over 672% to just under 200 Ontario municipalities, of which 69% had Twitter accounts.

In responding to the questions of whether a public service provider should use Twitter, and if so, why, Dr. Clarke indicated that the academic and practitioner literature generally concludes that use of social media, including Twitter, is a necessary and beneficial component of contemporary public sector communications and citizen engagement strategies. She also indicated that the three rationales typically cited as justification for that conclusion are: (1) public service providers should use social media because citizens want them to; (2) social media can support official communications functions by providing a useful platform for disseminating policy messages and official announcements, and can ensure that public service providers are communicating to citizens in the online spaces where they aggregate (as opposed to assuming the citizens will find such information via traditional channels); and (3) social media provide a new and more effective platform for citizen engagement, which can render government decision-making processes more democratically responsive, and support more effective or efficient public policies and services.

The arbitrator declined to order the shut down of @TTChelps. However, he found that TTC failed to take all reasonable and practical steps to protect bargaining unit workers from harassment, contrary to the law.

During the course of argument, reference was made to a number of statutes, including the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1 (the ”OHSA”), and the Human Rights Code, R.S.O. 1990, c. H.19 (the “HRC”). The parts of those statutes potentially relevant to the disposition of the grievance include the following provisions:

1(1) “workplace harassment” means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome;

”workplace violence” means,
. . .
(c) a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in the workplace, that could cause physical injury to the worker.

[Section 25(1) imposes a strict duty on employers to ensure that prescribed equipment, materials and protective devices are provided, maintained in good condition and used as prescribed; that prescribed measures and procedures are carried out in the workplace; and that any part of the workplace is capable of supporting any loads which may be applied to it.]

25(2) Without limiting the strict duty imposed by subsection (1), an employer shall,
. . .
(h) take every precaution reasonable in the circumstances for the protection of the worker;
. . .
32.0.1(1) An employer shall,
(a) prepare a policy with respect to workplace violence;
(b) prepare a policy with respect to workplace harassment; and
(c) review the policies as often as necessary, but at least annually.
. . .
32.0.6(1) An employer shall develop and maintain a program to implement the policy with respect to workplace
harassment required under clause 32.0.1 (1) (b).
32.0.6(2) Without limiting the generality of subsection (1), the program shall,
(a) include measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor;
(b) set out how the employer will investigate and deal with incidents and complaints of workplace harassment; and
(c) include any prescribed elements.

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
5(2) Every person who is an employee has a right to freedom for harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

In deciding for the union the arbitrator held:

It is clear from the totality of the evidence that the TTC has failed to take all reasonable and practical measures to protect bargaining unit employees from that type of harassment by members of the community, as required by the HRC, the Agreement, and the Workplace Harassment Policy. The evidence discloses many inadequate responses by @TTChelps to offensive tweets of that type, such as: (1) ignoring the offensive language and merely advising the tweeter “You can call us at 416-393-3030 or go to ow.ly/AKsGz to report your experiences”; (2) responding by stating “We understand your concerns however please refrain from personal attacks against employees”, but then going on to provide information on how to file a complaint; (3) responding “Can you please refrain from using vulgarity and elaborate on what happened?”; or (4) responding by merely stating that the TTC does not condone abusive, profane, derogatory or offensive comments.

To deter people from sending such tweets, @TTChelps 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. 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.

The decision is important in that it clarifies the idea that the workplace can include a virtual location such as the web. Once harassment is identified, the employer will need to take steps to address the activity. If necessary, it may have to close down the social media account.

Employers should review their exiting workplace policies to ensure those policies contain provisions for responding to complaints including proper investigation and action. The social media policy should be consistent with the law and the employer’s business objectives.


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