July 28 2016
An interesting arbitration award was issued the other day that found that the Toronto Transit Commission violated employees’ collective agreement rights and the Human Rights Code in the manner in which it used a Twitter account. Here is a Toronto Star story on the case, with some of my comments. This is the first case I am aware of in which a union has challenged an employer’s use of social media to solicit customer complaints about employees.
The Union grieved the use by the TTC of the Twitter handle @TTChelps to “publish personal information” about employees, to receive and make complaints about employees, and to solicit public comments about employees. The grievance alleged that the employer created “a forum for haters and abusers to heap abuse” on TTC employees and that the employer then failed to properly respond to that abuse by protecting employees.
The evidence disclosed a litany of abusive comments posted to @TTChelps by the public about TTC employees. The arbitrator listed some examples:
Indeed, the inference which may most reasonably be drawn in the circumstances of this case is that few if any employees would not be offended by being described in tweets accessible through the Commission’s @TTChelps Twitter account as “bitchy bus drivers”, “racist asshole bus drivers”, “shitty drivers”, “cunts”, “douchebags”, “fucking dicks”, “doublefucks”, “pricks”, “morons”, “fucking idiots”, “losers”, “union jerks”, “goons”, “rude surly subway drivers”, “rudest people on the planet”, “phsycho”, “insane”, “bipolar”, “idiot”, “wank”, “grumpy bastard”, “stupid bus driver”, “moron driver”, “absolute jerk driver”, “dickhead driver”, “retarded driver”, “rude selfish beastly male TTC subway operator”, “mother fucker”, “total pompous jerk”, “fucking fatass”, “not fit to drive a bus let alone provide customer service”, “needs to learn how to drive”, “rude and pissy”, “dumbnrude”, “scum”, “another fucking faggot in a not in service bus”, “brown son of a gun of a driver”, “bald white piece of shit fuck”, “racist fuck that needs to get laid”; “overweighted ginger with a grouchy attitude”, “Racist driver much? Total jerk to white customers, perfect gentleman to black customers”; and bald dude w/ 2 earrings taking tickets at temporary Union entrance is an absolute prick”.
You get the idea. There were also Tweets that sexually harassed TTC employees (bus driver too sexy to handle in the morning) and in at least one case the employer responded by saying “thanks for the feedback, glad to hear! LOL”
The gist of the Union’s argument was that by creating the Twitter account and then encouraging the public to raise issues and make complaints about employees, the employer contributed to a hostile work environment.
The Union argued too that the manner in which the employer responded to Tweets was offensive, and failed to protect employees from this abuse. For example, when people Tweeted an offensively worded complaint to the TTC’s Twitter account, the employer would sometimes respond by expressing empathy for the Tweeter rather than strongly object to the harassing language. In addition, the Union argued that many times when a complaint was Tweeted to @TTChelps alleging employee misconduct, the employer responded in a manner that accepted the truth of the allegation, without any investigation at all. This creates an on-line discussion about employee conduct that could lead to discipline even though the collective agreement indicates that disciplinary matters are private matters. For all these reasons, the Union argued that the employer’s behaviour in maintaining @TTChelps created a hostile work environment contrary to the collective agreement, company policies, the Occupational Health and Safety Act, and the Human Rights Code.
The employer argued that it cannot control what people Tweet and so the offensive Tweets would happen even if the TTC did not have a social media account. The employer called an expert witness who testified about the importance of public service organizations using social media to interact with the public.
Arbitrator Howe begins his reason by noting that the legal obligation on employers to prevent harassment of employees applies to harassment by customers and third parties as well as management and coworkers. He then concludes:
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 … 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 arbitrator also expressed concern that issues related to employee discipline, which is a private matter, was appearing on @TTChelps where the public could see it, and that photos of employees sent by angry customers were being linked to the website. Arbitrator Howe wrote that the employer has a duty to respond with an assertive announcement that verbal abuse and offensive comments will not be tolerated under any circumstances and a request to immediately remove the Twitter post. If the Tweeter refuses to take down the Tweet, the TTC should block the person and report the offensive Tweet to Twitter.
The Union asks the Arbitrator to order the @TTChelps website be taken down. But Arbitrator Howe refused to go that far because he concluded the website has value as a tool to allow the employer to communicate with the public. However, he does require that changes be made to the manner in which the website is maintained. He essentially defers ordering remedy and requests that the parties meet to devise a policy for the use of @TTChelps that is consistent with the guidelines described in the decision.
Issues for Discussion
Arbitrator Howe refers specifically to the collective agreement, an internal harassment policy, and the Human Rights Code in finding that the employer fell short of its legal duty to take reasonable steps to protect employees from harassment. The Code only deals with harassment based on prohibited grounds (race, sex, religion, skin colour, etc). Does this case provide any guidance on the legal obligation of a nonunion company to police its social media accounts, including when the offensive comments are not related to prohibited grounds?
Assume you are an HR manager at a company that maintains a Twitter account. Draft a policy that instructs employees responsible for monitoring that account that complies with the guidelines described in this decision.