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38 N O V E M B E R / D E C E M B E R 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m recent arbitration case deal- ing with the Toronto Transit Commission's Twitter account highlights the difficulty in defining the limits of an employer's legal obligation to protect its employees. In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (Use of Social Media Grievance), the union wanted the TTC's Twitter account shut down. The union said the account served as a platform for passengers to harass, demean and belittle employees. It also alleged TTC employees had complained for years and the company did nothing to address their concerns. Some of the tweets were found to be harassment under Ontario's human rights legislation, as well as violating the TTC's Respect and Dignity Policy, and while the arbitrator agreed with the TTC that it was difficult, if not impos- sible, to regulate the Twitter account, the grievance was upheld and the decision stated the difficulty was not a defence. The arbitrator didn't order the account be shut down, but it left it to the parties to figure out next steps, including devel- oping template responses and mutually agreeable guidelines for responding to tweets. The arbitrator also didn't award any damages. "The arbitrator denied both demands primarily on the basis that, as a public service provider, the TTC has a right to establish a social media presence through Twitter for the purpose of communicat- ing with the public and its customers — a position that was supported by expert evidence," says Dolores Barbini, partner at Hicks Morley Hamilton Stewart Storie LLP and counsel for the TTC in this case. The TTC was ordered to create a social media policy to address the issues, including taking on the responsibility of monitoring, contacting offensive tweet- ers to say the TTC doesn't condone their comments and asking them to delete offensive tweets or be blocked. Finally, the TTC would need to ensure it follows through with the blocking and seek the assistance of Twitter if necessary. "There is no doubt an employer has an obligation to protect its employees in this situation," says Barbini. "The real question is how far does an employer have to go?" She notes the TTC takes reasonable steps to address inappropriate tweets from the public directed at its employees on an ongoing basis and its process has continued to evolve since it opened the account. "What's interesting is the Twitter account at issue, the TTC had very little control — if any — over the posts that were made," Mark Mendl, partner at Baker & McKenzie LLP, says, adding this is a new direction as the vast majority of cases out there have dealt with employ- ee posts to social media, not posts by the general public to a company-held account. L E G A L R E P O RT \ L A B O U R & E M P L O Y M E N T ALEXI VELLA Employers need to keep tabs on social media to prevent harassment or discrimination against employees By Mallory Hendry Social media monitoring A

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