Do employers have a legal obligation to protect their employees from the vitriol that may be hurled at them via social media? Put another way, is an employer obligated to take positive steps to attempt to protect its employees from being harassed online?
In a labour arbitration award dated July 5, 2016, Toronto Transit Commission and ATU, Local 113 (Use of Social Media), Re, 2016 CarswellOnt 10550 (ON Arb), Adjudicator Robert D. Howe said that the answer to those questions is “yes.”
Facts
The case concerned the Toronto Transit Commissions (“TTC”)’s employment of a Twitter handle, @TTChelps. That account receives its fair share of offensive tweets; a fact that would likely not surprise anyone that has ever been on Twitter or ridden public transportation.
The union complained that the TTC’s response to such offensive tweets was both inadequate and inappropriate. Although the adjudicator goes to pains to catalogue the extent of the vitriol hurled at the TTC, and there has been a lot, the union’s argument can best be captured by skipping to the adjudicator’s summary of the parties’ arguments.
The Union argued as follows:
The Employer through its use of social media is breaching obligations which it has to bargaining unit members. Social media is really a form of public town hall, public square, or bulletin board. The Employer is using it in a manner which is intended or known to have the effect of soliciting confidential private information about bargaining unit members, and is to some extent having a public discussion about what are private matters. The Employer is also providing a forum for haters and abusers to heap abuse on bargaining unit members, and cannot or will not effectively deal with that abuse. The Employer’s conduct is contrary to its obligation to provide a workplace which is safe and free of harassment. It is also a breach of the privacy rights of bargaining unit members, and is inimical to the concept of dignity. The invasion of their privacy comes in two forms: (1) disclosure of private information to which the public would not normally have access, including where employees are working, their employee numbers, details of complaints about their conduct, and photographs of them; and (2) surveillance of employees. The Employer cannot train cameras on operators and video monitor them for the entire time that they are at work, but through the use of social media the Employer has enlisted the public to do exactly that in real time. Through @TTChelps the Employer is encouraging people to take photos and videos and to send them to the Employer, thereby doing indirectly what the Employer would not be allowed to do directly. Operating a camera or any similar device for commercial purposes on the transit system without authorization violates section 3.17 of TTC By-law No. 1. This includes using it to take photos or videos for uploading to Twitter, which is a commercial enterprise.
A related issue is that social media is being used as a surrogate public complaint process which is outside the public complaint process bargained by the parties, and which circumvents that process. Section 41 of Article 1 of the Agreement codifies how public complaints are to be dealt with. The person making the complaint must be willing to set out their complaint in writing and sign it. That requirement acts as a significant filter to ensure that matters the Employer is investigating and employees are responding to are significant, important matters. If the Employer wants to make changes to that process, it must bargain them and cannot just set up a parallel system.
It is not appropriate to be taking complaints about employees through social media, or to be discussing them publicly. There cannot be any doubt that if the Employer uses social media for public communication about the conduct of employees in the workplace, that sphere becomes part of the workplace. It is just as wrong for the Employer to discuss employee conduct on the internet as it would be to make a meeting room and a microphone available on the Employer’s property for people to say those sorts of things. Although the Employer cannot control everything that everyone does, that does not mean that it does not have an obligation to control what it can. Just because the Employer cannot achieve perfection does not mean that it should not attempt to have a workplace free of harassment.
Harassment is defined in OHSA, the TTC’s Respect & Dignity Policy, and Toronto Transit Commission v. Amalgamated Transit Union (Stina Grievance), [2004] O.L.A.A. No. 565; 132 L.A.C. (4th) 225 (Shime). The Employer is required by statute and by that arbitration award to have a workplace that is free of harassment. By the Agreement and by its own By-law and policies, the Employer has committed itself to doing so. Despite that, through the use of social media which the Employer has participated in via @TTChelps, patrons feel free without consequence to subject bargaining unit employees to all sorts of abuse, including derogatory language, sexual harassment, sexist and racist comments, and threats of violence. The Employer’s obligation to take every reasonable precaution includes not just a prohibition on the Employer saying the abusive things; it also requires the Employer to take positive and reasonable steps to see that the workplace is free of harassment. The Employer has failed to do that in this case as it has created and facilitated a public forum where it knows or ought reasonably to know that members are being threatened, abused, and harassed. It has taken virtually no steps to protect members. In fact, to the extent that it replies to the abusers, it facilitates the publishing of these abusive tweets to a broader audience. In merely responding to such tweets by stating that it does not condone them, and failing to take any further action, the Employer is condoning them. The Employer has occupied a part of the internet through its use of social media, and @TTChelps has become part of the virtual workplace at the TTC. Those abusive tweets come within the definition of what constitutes a poisoned work environment. The Employer’s supervisors have failed to fulfil their obligation to create a workplace free of harassment. Offensive posts are akin to graffiti and trigger similar obligations.
The Employer is advancing its own agenda at the expense of bargaining unit members. A good part of what the Employer is up to in addition to creating a surveillance system is a public relations exercise. There is no evidence that the Employer ever secured the consent of the employees that their personal information could be used in this manner.
Although the TTC’s Web Site Terms & Conditions of Use do not apply to the use of social media, they certainly give some hints on what should be done, and reflect an understanding that internet postings are public and not private communications. The law is absolutely clear that an employer is not only liable for its own acts of discrimination or harassment, but also for those of its agents and employees, and that it can also be liable for the acts of third parties such as customers.
The TTC has a duty under the Ontario Human Rights Code to investigate a complaint of discrimination. The Union made a complaint to it long ago about the way in which social media is being used, but nothing has been done. Employers have duties and obligations regarding their use of social media, just as employees do. In this case, the TTC has not fulfilled those duties and responsibilities. Although there may have been things that the TTC could have done at the beginning to set out rules and publicize that it would not allow @TTChelps to become a vehicle for the harassment, based on the record of what has occurred the only reasonable, prompt and effective action is now to shut it down.
As a result, the Union asked for the following remedies:
- a declaration that the Employer’s use of social media, including but not limited to @TTChelps, is contrary to the Agreement, the Human Rights Code, and the OHSA;
- an order that @TTChelps be taken down and not used anymore;
- an order that the Employer not use social media or encourage the use of social media to receive personal information regarding bargaining unit members or complaints of alleged misconduct;
- damages for the Employer’s breaches of the Agreement, the HRC, and the OHSA;
- an order that the Employer provide to its managerial staff training acceptable to the Union on their duty to protect employees from harassment and abuse by third parties, including but not limited to abuse via social media;
- an order prohibiting the Employer from using social media until such time as it has developed and implemented a social media policy which is consistent with this award, the Agreement, the HRC, and the OHSA, and which addresses the issue of improper conduct by third parties on social media and the steps to be taken to address that improper conduct; and
- a declaration that it is contrary to the Agreement to validate or otherwise give credence to allegations of misconduct against bargaining unit members before the matter has been investigated and dealt with in accordance with the Public Relations Complaints provisions in the Agreement.
For its part the Employer argued as follows:
As the public transit provider for the City of Toronto, the TTC has a right to establish a social media presence through a Twitter account for the purpose of communicating with the public and with its users. There is no basis for challenging its right to have a Twitter account for that purpose unless the Union can establish a violation of the Agreement or the violation of a statutory obligation.
A Twitter account such as @TTChelps is simply a neutral form of technology which is not in and of itself discriminatory, harassing, violent or a breach of privacy. It is the particular circumstances of any given case that may give rise to a breach, and it is those particular circumstances which can be the subject matter of a grievance if raised in a timely way such that the Employer is afforded the normal opportunity to address the situation.
As shown through the undisputed expert evidence, it is necessary and a best public administration practice for the TTC to have a presence on social media, and choosing to have a social media presence through a Twitter account such as @TTChelps, which is an interactive/dialogue format, is the most effective way to communicate with the public and TTC users. It is an essential communicative tool and the TTC should be allowed to continue to use it. If a breach is established, it should be remedied in terms of its impact on a particular employee. The TTC could also be ordered to supplement its policies, but there is simply no basis to order that @TTChelps be shut down.
The Union’s position irrevocably leads to the conclusion that no employer or government service provider can use social media as a means of communication with either the public or its customers because of the potential for concerns. This highlights the unreasonableness of that position.
There would be no benefit to having a TTC policy regarding members of the public taking videos of employees, as this is out of the TTC’s control. Even if the TTC did not have a Twitter account, members of the public could take photos or videos of TTC employees and post them on-line. Although Twitter may have a commercial purpose, a tweeter cannot be said to be involved in a commercial purpose by merely taking a photo or video of a TTC employee and attaching it to a tweet. There have been very few instances where users have attached photos or videos to a tweet since the TTC opened @TTChelps in February of 2012.
The Union’s case seems to be premised on the misplaced perspective that TTC employees have the right to be free from public complaints. The TTC and its employees provide a fundamental public service which is at least partially paid for by tax dollars. 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 service either generally or in relation to its employees. While it is arguable that discipline imposed on an employee by the TTC as a result of a complaint ought to be kept private, that is not what this case is about. There is no evidence that any particular employee’s right to privacy has been violated. An employee’s badge number is not private information, nor is the bus number that an employee is driving or the route number on which it is being driven. In the context of an employee who works in public providing a public service, there is no reasonable expectation of privacy regarding that information. Union counsel’s assertion that the TTC enlists the public to perform surveillance on its employees is preposterous and unsupported by any evidence whatsoever.
When the TTC tweets a response such as “sorry to hear” or “sorry for the experience”, it is not indicating that a TTC employee has done anything wrong. It is merely expressing empathy for the customer’s feelings and attempting to de-escalate the situation.
The tweets introduced into evidence are full of examples where the TTC responded properly to inappropriate language or content. The fact that there are hardly any repeated offenders demonstrates that the TTC’s response is effective. Twitter exists and members of the public can tweet anything about the TTC regardless of whether the TTC has a Twitter account or not. Having an account allows the TTC to be engaged by replying, clarifying, helping, and de-escalating.
The jurisprudence recognizes that it is not possible for an employer to prevent all behaviour that amounts to harassment or disrespectful behaviour towards employees, and that there are very real limits to the power of an employer to anticipate and control such behaviour. Consequently, the standard is one of reasonableness, not correctness or perfection. The same is true of an employer’s obligation under OHSA. An employer does not have to take steps to guarantee an employee’s health and safety against all possible or conceivable risks; it is only required to take reasonable precautions to provide the appropriate level of protection to employees.
Decision
In deciding that the employer had not done enough to protect its employees from online harassment, Adjudicator Howe reasoned as follows:
[126] Subsection 5(1) of the HRC [Human Rights Code] gives every person 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. Subsection 5(2) gives every employee a right to freedom from harassment in the workplace on the basis of similar prohibited grounds.
[127] In B.L. v. Marineland of Canada Inc., Adjudicator M.D. Garfield wrote, in part, as follows in paragraph 57:
I also find that subsection 5(1) of the Code dealing with freedom from discrimination “with respect to employment” governs the situation where the discriminator/harasser is not a fellow employee, but a guest or visitor of the employer. The right in subsection 5(1) is owed by the employer to its employee. It does not matter if the alleged discriminator/harasser works for the employer or not. This principle - that the employer’s obligation is triggered if its employee is discriminated/harassed by a non-employee third party (e.g., visitor or guest) - has been recognized and applied in other jurisdictions...[128] A similar conclusion was reached by Arbitrator Sarra in Clarendon Foundation v. Ontario Public Service Employees Union, Local 593 (Mitchell Grievance), in which she wrote, in part, as follows in paragraph 39 of her award:
Adjudicators and the courts have held that an employer is liable not only for its own acts of discrimination, but also those of its Agents and employees. An employer can also be liable for the acts of third parties, such as consumers, customers, and residents of correctional or health care facilities.... In the case of harassment by consumers or customers, it is the employer that has the greatest control over workplace conditions, and thus it must intervene effectively to stop harassment by third parties (Jalbert, supra). While an employer may not be able to control the remarks of a customer or consumer, the employer does have control over how it responds to discriminatory conduct in the workplace, regardless of how the condition occurred (Mohammed v. Marisposa, supra; Uzoaba, supra). “Unwelcome conduct” should not be treated any differently because that conduct was perpetuated by a customer (ibid.) In situations of racial harassment, an employer has the responsibility to respond with diligence and take reasonable steps to eliminate the problem (Uzoaba, supra).[129] In section 24 of the [Collective] Agreement, the Commission expressly recognized “the requirement to provide a work environment and transit services to the public that are free from harassment and discrimination, as stated in the Ontario Human Rights Code”. Similarly, in its Workplace Harassment Policy, the TTC recognized its obligation to protect all employees from harassment that contravenes the Ontario Human Rights Code, and its obligation to take all reasonable and practical measures to protect employees from harassment by members of the community. As indicated above, the definition of harassment contained in that policy reads:
3.1 Harassment may take many forms, but can generally be defined as behaviour, including comments and/or conduct, which when based on a prohibited ground is insulting, intimidating, humiliating, hurtful, malicious, degrading, or otherwise offensive to an individual or groups of individuals, or which creates an uncomfortable work or service environment. The Ontario Human Rights Code and the Workplace Harassment Policy specifically prohibit harassment on the following grounds: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex, gender identity, sexual orientation, disability, age, marital/family status, same sex partnership status or record of offence. The Workplace Harassment Policy also includes all offensive behaviour arising from use of electronic communications, such as the internet, e-mail, etc., which violate the Ontario Human Rights Code....[130] As contended by Union counsel and as implicitly recognised in the final sentence of that definition, social media sites operated by the TTC, such as @TTChelps, can be considered to constitute part of the workplace for purposes of determining whether the HRC, the Agreement, and TTC policies have been contravened as a result of harassment.
[131] Also instructive is the following passage from Re Toronto Transit Commission and A.T.U. (Stina), in which Arbitrator Shime wrote as follows (at page 45) in describing what harassment includes:
Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment.[132] A number of the tweets contained in Exhibit 15 constitute harassment on grounds prohibited by the HRC. Tweets calling a TTC employee a “fucking faggot”, “brown son of a gun of a driver”, or “bald white piece of shit fuck”, clearly fall into that category, as do a number of others included in the Tab 1 “Derogatory Language” section of the exhibit. Many of them are also violative of the Commission’s Respect and Dignity Policy, which applies not only to employees but also to members of the public utilizing TTC services.
[133] 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.
[134] Counsel for the Union also submitted that through its use of @TTChelps the Employer is breaching the privacy rights of bargaining unit members by enlisting the public to train cameras on operators and video monitor them for the entire time that they are at work, and by disclosing private information to which the public would not normally have access, including where employees are working, their employee numbers, details of complaints about their conduct, and photographs of them.
[135] In TTC v. Amalgamated Transit Union, Local 113 (Belsito Grievance), Arbitrator Chapman conducted an extensive review of the pertinent judicial and arbitral jurisprudence which led her to conclude that although employees in Ontario have a right to privacy, it is not an absolute right but rather one that must be balanced against other rights and interests. She also concluded that where an employer undertakes surveillance of an employee, an arbitrator must balance the employee’s interest in privacy against the employer’s interest in obtaining the information collected. The potentially intrusive effect of video surveillance on the privacy and dignity of employees is also recognized and discussed in Electronic Instrument Company Inc. (EICO) and International Union of Electrical, Radio and Machine Workers, Local 431, supra; and Royalguard Vinyl Co..
[136] Counsel for the Union submitted that taking photos or videos and uploading them to Twitter violates section 3.17 of TTC By-law No. 10 because Twitter is a commercial enterprise. However, as submitted by Employer counsel, a tweeter cannot legitimately be said to be involved in a commercial purpose by merely taking a photo or video of a TTC employee and attaching it to a tweet. Union counsel further submitted that through @TTChelps the Employer has enlisted the public to train cameras on TTC employees, to take photos and videos of them, and to send them to the TTC. Although that contention is not supported by the evidence adduced in these proceedings, the evidence does establish that members of the public have occasionally included a photograph of a TTC employee in tweets sent to @TTChelps. As recognized by B.V.’s manager after she filed the aforementioned occurrence report, it is not appropriate for a member of the public to post a photograph of a TTC employee on @TTChelps, particularly in conjunction with an offensive tweet. Although the person who posted that offensive tweet did not respond to Ms. Motahedin’s request that he delete it, he did delete the photo. In order to reduce the risk that TTC employees will be subjected to this type of indignity and invasion of their privacy, @TTChelps should adopt the approach described above in relation to abusive, profane, derogatory or offensive tweets. @TTChelps should not only indicate that the TTC does not condone the posting of photographs of TTC employees on Twitter but should go on to request the offending tweeters to immediately delete the posted photographs and to advise them that if they do not do so they will be blocked. If that response does not result in the photograph being deleted forthwith, @TTChelps should proceed to block the tweeter.
[137] Union counsel also submitted that the privacy of TTC employees is invaded by tweets disclosing where they are working, their employee numbers, and details of complaints about their conduct. However, as submitted by Employer counsel, 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.
[138] In determining the propriety of complaints about employee conduct being tweeted to @TTChelps, it is necessary to consider the effect of the inclusion of Section 41 in the Agreement. That section provides a procedure which must be followed in the investigation of complaints received by the TTC from the public regarding the conduct of a Commission Transportation or Maintenance employee. Although it permits verbal complaints to be made, it requires that they be set out in writing by the complainant in the form of a “letter/signed statement” forwarded to the TTC’s Marketing and Public Affairs Department within twenty-one normal working days of the incident in question, unless the complaint involves allegations of a criminal nature or violations of Section 8 of the Agreement, or unless during the interview process the employee agrees with the substance of the complaint.
[139] As indicated by the Divisional Court in Godfrey v. Ontario Police Commission, at paragraph 41, “[i]n the traditional labour relations context, matters or issues of employee discipline are essentially a private matter between the parties”. Thus, it is troubling to have allegations of misconduct by particular TTC employees included in tweets which can be viewed by others. As indicated above, although neither the tweet containing the allegation nor @TTChelps’ tagged reply to that tweet will automatically appear in the timelines of other Twitter users following @TTChelps (unless they are also following the user to whose tweet @TTChelps is responding), any user may view those replies (other than replies sent as direct messages) by accessing @TTChelps’ profile (by clicking on “TTC Customer Service”) and then clicking on “Tweets & replies”. If a user wants to view the tweet(s) that gave rise to a particular reply, the user then clicks on the reply. There is no evidence regarding how frequently users take those additional steps. Consequently, it is unclear how often this information is accessed. Nevertheless, it remains troubling that it can potentially be accessed by persons who would not normally be privy to that information. However, eliminating @TTChelps would not preclude information of that type from being posted on social media. As indicated above, a number of derogatory, abusive, offensive, and inappropriate tweets about TTC drivers were tweeted from various Twitter accounts before @TTChelps came into existence. A number of those tweets also include allegations of misconduct by TTC employees. The same is true of the aforementioned offensive tweets contained in Exhibit 16 that postdate the inception of @TTChelps but which were not addressed to it. Thus, as noted by Ms. Motahedin, tweets of the type which concern the Union would be tweeted whether or not @TTChelps exists, because tweeters can and do create hashtags such as #TTCsucks and #TTCproblems.
[140] Although there are clearly some downsides to having @TTChelps operated as an official Twitter site of the TTC, there are also some advantages. As indicated by Dr. Clarke, social media usage has grown rapidly in Canada at the municipal government level, and has become an accepted mainstream practice, with Twitter being the social media tool most commonly used by governments in Canada. Her evidence also indicates that 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. In addressing the question of whether a public service provider should engage directly with the public through social media rather than merely providing information, Dr. Clarke indicated that 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. Thus, her evidence supports the validity of the aforementioned following observations which Ms. Motahedin made during the course of her testimony:
We have [@TTChelps] because our customers expect us to have it. Social media is incredibly important and continues to grow. Customers expect to be served through a channel of their choice. Different generations expect different experiences so we’re being responsive to what our customers want. Having @TTChelps on Twitter allows customers to contact us from their smart phones wherever they are and at any time, so by us having that presence we’re easily accessible. It allows us to interact with customers one-on-one. It can be immediate so it allows us to assist someone who is experiencing an issue right then and there. We can clarify, provide additional information, and de-escalate situations. We reduce frustration for our customers and reduce frustration employees are experiencing.... As well, @TTChelps builds trust with our customers. They see that we’re visible and present. Our responses are transparent. We have nothing to hide.[141] Although customer complaints about employees were accepted through @TTChelps prior to 2014, Ms. Motahein testified that since January of 2014 when she was hired as the head of the CSC, customers who have a complaint are asked to contact the TTC by telephone or via the TTC website, which has a fillable complaint form for complaints relating to TTC employees, as well as a fillable complaint form for complaints about TTC service. If that were all that was being tweeted back in response to such tweets, this aspect of the use which is being made of @TTChelps might be found to be an acceptable balancing of the disparate interests reflected in Section 41. However, many of the responses sent by @TTChelps include language such as “I apologize for that”; “I’m sorry for the experience”, “sorry to hear that”, “that’s not good”, and “that was not nice at all”. While as suggested by Ms. Motahedin that language may express empathy and acknowledge how the customer is feeling, it can also readily be interpreted as accepting that what the customer tweeted actually happened and validating that the employee has done something wrong, without any investigation having been conducted to determine what actually occurred.
[142]To bring the operation of @TTChelps into closer alignment with the letter and spirit of Section 41, and with the Section 8 recognition of the requirement that justice in relation to disciplinary matters must be done in a manner that is consistent with dignity, when @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 calling 416-393-3030 or going to ow.ly/B27pF. A possible exception to that approach would be tweets alleging misconduct on the basis of an obvious misperception, which might usefully be corrected through a response of the type described below.
[143] One of the advantages of having @TTChelps operated as an official Twitter site of the TTC is that it enables the Commission to (in the words of Ms. Motahedin) “clarify, provide additional information, and de-escalate situations”. However, if that advantage is to be fully realized, greater care needs to be taken to ensure that the information provided by @TTChelps is accurate, and that it does not include inappropriate editiorialising, such as the inclusion of the word “unfortunately” in the aforementioned following response that @TTChelps sent to a customer who criticised an operator for not assisting a mother in getting her stroller onto a streetcar: “Unfortunately, operators are not required to assist”.
[144] As indicated above, responses sent by @TTChelps sometimes contain inaccurate information, such as the aforementioned following response to a tweet suggesting that something should be done about people playing music or loud games on TTC vehicles without headphones: “There is a bylaw in place [and] drivers are to enforce it”. As indicated above, it was Mr. Signorile’s uncontradicted evidence that although there is a by-law which addresses playing music without headphones, drivers are not required to enforce it. He further testified that if drivers attempted to enforce the bylaw they could be assaulted, and expressed the legitimate concern that as a result of the misinformation provided by @TTChelps in that response, the public would expect TTC drivers to enforce the bylaw and would report them if they did not do so.
[145] In some instances, such as those involving customers’ tweets about drivers not restopping after servicing a stop, it may well be appropriate for @TTChelps to advise customers that due to safety considerations drivers are not required to re-service stops, but inappropriate for @TTChelps to add editorial comments that are implicitly critical, such as “but they could use discretion and exercise good customer service & do so”. Similarly, it may be appropriate for @TTChelps to advise customers that operators are permitted to take breaks to use washroom facilities, but inappropriate for @TTChelps to add implicitly critical editorial comments such as “Again we expect them to exercise discretion at all times”.
[146] Developing templated responses mutually acceptable to the Employer and the Union might well be of assistance to the senior service representatives who respond to tweets received by @TTChelps, and beneficial in ensuring that the responses they provide are not violative of the TTC’s collective agreement or statutory obligations. It might also be beneficial for the parties to develop mutually acceptable guidelines regarding when information of that type should be provided, and when tweeters should simply be advised that if they wish to file a complaint they must contact the TTC by telephone or via the TTC website.
[147] As indicated above, the Union seeks an order requiring the TTC to shut down @TTChelps. However, this has not been proven to be necessary or appropriate at this juncture. Operating @TTChelps permits the TTC to provide useful information to customers. Hopefully the relatively small number of offensive tweets received by that social media site can be further reduced, if not totally eliminated, by lesser measures such as the ones described above and the development of a TTC social media policy. Although parts of the other policies described above may be applied to concerns raised by offensive tweets sent to @TTChelps, it would be preferable to have them brought together and refined in a social media policy. In this regard, it is noteworthy that Dr. Clarke indicated that she assumed that the TTC has a social media policy because it would be out of the norm for a public service provider to have a Twitter account without having such a policy.
[148] In the circumstances of this case, I find it appropriate to afford the parties an opportunity to confer regarding the steps which should be taken in light of the findings made in this award, remaining seised to deal with the matter of remedy, with the benefit of additional submissions (and evidence, if appropriate), in the event that the parties are unable to reach agreement on that matter.
That’s the entire decision. I do not often copy an entire decision, but I made an exception in this case.
Commentary
I have often commented on workplace harassment on this blog. I have argued, quite strongly sometimes, that the law has not taken sufficient steps to protect employees from workplace harassment. And, while I have worked several jobs, many in the service industry including quite a number of years working in retail establishments, I must confess that I have never been employed in the service industry in the public sector.
If I am making confessions in this section I will add one more, I am much more of an employment lawyer than I am a labour lawyer, and to that end I do not fully appreciate the dynamics of union/management grievances. That this case was litigated at all leaves me shaking my head on many, many levels. The union’s requests seem simply too unreal for me.
All of that said, I will confess to being frustrated while reading this decision. The most common response to the complaints raised by the union was, “What do you want the employer to do about it?” Although I guess the answer to that question is “Something.”
There is no doubt that internet witnesses some of the worst of humanity. The veneer of anonymity seems to permit people to say things to others that they would never dream of saying to their face. Also, a name such as “TTChelps” is a much easier target for vitriol than would be the name of the employee operating the account; the TTC is a faceless monolith, “Dave” is a human being. But, as the employer argued, that vitriol is going to be hurled whether the TTC holds up a target or not.
When this story broke on the CBC there was much interest. To that extent, a real objective of this post was to generate a discussion about the decision. Comments welcomed below.
Takeaways for Employees with Labour Pains
The takeaway for employees is that there is a movement towards greater protection from workplace harassment. Unlike most court cases the adjudicator in this case did actually provide some suggestions for what the employer could do to curtail the harassment. Although I personally believe that such suggestions are a touch optimistic and someone with a more Hobbesian perspective may have arrived at a different decision.
Takeaways for Employers with Labour Pains
There is no doubt that employers are going to be frustrated by this decision. That said, as mentioned above, there is a movement afoot to attempt to protect employees from harassment, whether it occur in real life or online, and whether it be at the hands of those over which the employer has direct control or not.
Contact Me
Have a workplace harassment issue? Need a policy with respect to workplace harassment? Need someone to conduct an investigation into incidents and complaints of workplace harassment (or just want some guidance and advice on how to do one in-house)? Call me. Email me. Do what works for you.
I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He has also been a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.
--As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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