Finding that Social Media Account Part of Workplace Leads to Employer Liability for Harassment

by Ellen Pinkos Cobb

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A recent Ontario Labour Arbitration award found that the employer’s failure to protect its employees from harassment with regard to online posts on its Twitter account violated its responsibility to provide a workplace free of harassment. Here, the employer had a Twitter account to provide service updates, reminders, and information about service issues, as well as one used to receive and respond to customer service questions and concerns. This account was monitored and responded to by six senior service representatives employed in the Customer Service Centre (CSS). Bargaining unit members contacted the CSC to raise concerns about the employer allowing customers to use the account to make comments which made them feel intimidated, bullied, harassed, and threatened.

The Arbitrator found that as the public transit provider for the City of Toronto, the employer 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. However, it further found that the employer was also providing a forum for haters and abusers to abuse bargaining unit members, and had not dealt effectively with that abuse.

The Arbitrator ruled that it was clear from the totality of the evidence that the employer failed to take all reasonable and practical measures to protect bargaining unit employees from online harassment by members of the public, as required in Ontario by the Human Rights Code, the Union Agreement, and the employer’s Workplace Harassment Policy. Under these, the employer is required to provide a workplace free of harassment. The Arbitrator concluded that not only was the employer’s conduct contrary to its obligation to provide a workplace which is safe and free of harassment, it was also a breach of the privacy rights of bargaining unit members, and destructive to the concept of dignity.

Toronto Transit Commission and Amalgamated Transit Union, Local 113, 2016 CarswellOnt 10550