by Baker & McKenzie
Originally publisher: August 2, 2016
Does the workplace extend into cyberspace? In a precedent setting decision with potentially far-reaching implications, a labour arbitrator has found an employer liable for failing to protect its workers from harassment and discrimination in customer posts on the employer’s Twitter account (Toronto Transit Commission and ATU, Local 113, 2016 CarswellOnt 10550). Employers using social media to communicate with clients, customers or the general public may need to rethink how to they respond to uncivil, abusive or threatening online posts targeting their workers.
The case arose out the Toronto Transit Commission’s (the “TTC”) Twitter account which it established several years ago to respond to passengers’ questions and concerns. The TTC is the third largest public transit agency in North America and operates subways, buses and streetcars throughout the City of Toronto. At the time the issues arose, the Twitter had about 16,000 followers and 82,000 tweets.
The union representing the TTC’s workers filed a grievance demanding that the TTC’s Twitter account be permanently shut down. While the union complained about breaches of worker privacy and the lack of workplace safety, the crux of the union’s complaint was that the Twitter account created a platform for passengers to harass, demean and belittle TTC drivers, fare collectors and other workers. The union produced literally hundreds of “tweets” from passengers that were, in some cases, profane and abusive, and, in many others, racist, homophobic, threatening and discriminatory. The union alleged that years of complaints about the tweets went unaddressed by the TTC.