The decision by Arbitrator Howe was the first decision in Ontario where a union challenged an employer's use of social media to solicit customer complaints about employees. Based on the result achieved by the Union, it is unlikely to be the last. The Union grieved that the TTC violated the Collective Agreement, the Human Rights Code, and the Occupational Health and Safety Act through its use of the Twitter Account @TTChelps. The TTC, like many companies, developed the account to receive complaints and interact with its customers. The Union took issue with how the TTC responded to the complaints – specifically it was alleged that by maintaining the account the TTC contributed to a hostile work environment by creating a forum for haters and abusers to heap abuse on employees without a proper employer response.

The Union requested that the TTC be required to stop using the @TTChelps account. Luckily for employers concerned about a social media presence and quick responses to unhappy customers, the Arbitrator did not grant this request. However, the TTC was criticized for its Twitter practice and approach in responding to customer tweets. Arbitrator Howe found that the Employer responded in a way that was offensive and failed to protect employees. The TTC was faulted for accepting the truth of allegations without any investigation into the alleged conduct and for empathizing with the customer at the expense of their own employee. The decision emphasized that the employer had a legal obligation to prevent harassment of employees by customers and third parties as well as management and co-workers. As a result the Arbitrator rejected the TTC's argument that the offensive tweets would have existed regardless of whether or not the TTC operated an account.

The Arbitrator ordered that the Parties create a Twitter policy that ensured the TTC would be taking all reasonable and practical measures to protect its employees from harassment. A guideline was set out requiring that the TTC take the following approach when responding to customer tweets with offensive or harassing language:

1. The TTC should advise in its response that it does not condone the behaviour;
2. The TTC should ask the tweeter to delete the offensive tweet before providing assistance;
3. The TTC should advise that if the tweet is not deleted the tweeter will be blocked by the TTC;
4. If the tweeter does not delete the tweet, the TTC should seek the assistance of Twitter to have the offensive tweets deleted; and,
5. If Twitter is not responsive to requests made by the TTC, the TTC should reconsider continuing to operate a Twitter account.

Any employer operating a Twitter account should consider implementing a policy outlining its response procedure to ensure that it is not in breach of its obligations to provide a workplace free of harassment.

Note: This a reprint of an article by Angela Wiggins of CCPartners.