In a labour ruling believed to be the first of its kind in Ontario, a provincial arbitrator has censured the TTC for its behaviour on Twitter, determiningthat the transit agency didn’t do enough to protect its employees from harassment on social media.

The case centres on the commission’s @TTChelps Twitter profile, which the agency launched in 2012to field questions and complaints from the public. The union that represents TTC workers filed a grievance about the account in 2013.

According to a decision released earlier this month, Amalgamated Transit Union Local 113 argued that by operating @TTChelps the agency was “providing a forum for haters and abusers to heap abuse” on employees, and failed to “effectively deal with that abuse.”

TTC management countered that it had a right to establish a social media presence to communicate with the public, and whether the commission operated a Twitter account had no effect on customers’ ability to tweet offensive comments about TTC workers.

Arbitrator Robert D. Howe released his 35-page decision July 5, after 12 hearing dates that spanned three years. The details in this story are taken from his ruling.

Rocco Signorile, a union executive at the time of the grievance, testified that he pursued the issue after being contacted by employees who felt “intimidated, bullied, harassed, and threatened” by messages sent to @TTChelps.

The union presented tweets that showed customers using abrasive, racist, and homophobic language, including some describing operators and fare collectors as “bitchy,” “fat---,” “a-----e,” “another f-----g f-----t in a not in service bus,” and “racist f--- that needs to get laid.”

As one example of the TTC’s allegedly inadequate response to such complaints, Signorile cited an exchange in which a customer tweeted: “2 bus rides two completely different experiences. Driver 1 #d--k Driver 2 #goodhuman.” The @TTChelps account responded by providing the user with the phone number and website to make a complaint.

Signorile argued that by not doing anything about the customer calling the driver a “d--k,” the commission was encouraging abuse.

Three employees testified, including a subway worker identified only as C.C. who recounted how a customer took his picture and posted it to Facebook and Twitter, along with a message expressing her displeasure about how he handled her complaint about another customer, who she alleged had committed assault and harassment.

Other people saw the posts and began tweeting to @TTChelps about the employee. The original complainant deleted the photo, but another Twitter user posted it along with the caption “this douchebag employee needs some disciplining,” and the hashtag “Scum of the TTC.” His photo and the message were still online a year after the incident.

C.C. testified that he felt the company “let me down . . . It’s harassment. It’s no different from someone coming to your workplace and screaming these things at you.”

The TTC countered the allegations by arguing that the cases the union presented were “full of examples where the TTC responded properly,” including by asking customers to refrain from personal attacks, telling them to delete posts, and in extreme instances, even calling the police.

“(M)embers of the public can tweet anything about the TTC regardless of whether the TTC has a Twitter account,” the agency argued. “The jurisprudence recognizes that it is not possible for an employer to prevent all behaviour that amounts to harassment . . . and that there are very real limits to the power of an employer to anticipate and control such behaviour.”

In his decision, Howe wrote it was “troubling” that disciplinary matters that are supposed to remain private appeared in a public forum like Twitter. But he agreed that there was little to prevent the customers from posting offensive messages about TTC employees.

He also noted that under the Ontario Human Rights Code and the TTC’s collective bargaining agreement, employees are entitled to a workplace free from harassment and discrimination, and that social media sites operated by the TTC should be considered part of the workplace.

“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,” Howe wrote. The evidence showed “many inadequate responses” by @TTChelps, he continued, including ignoring offensive language, and helping abusive customers make a complaint about workers.

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Howe recommended that the TTC should ask Twitter users to immediately delete offensive tweets or photos, and should block accounts that don’t comply. The agency should also ask Twitter to delete the messages of users who don’t co-operate.

But Howe didn’t grant the union’s demand for an order to shut down @TTChelps, because he determined it provided useful information to customers. He also declined to award damages to the union. Instead he directed the TTC to create a social media policy to govern its use of the account, and for the two parties to work together to determine next steps.

David Doorey, a director of Osgoode Hall Law School’s labour and employment law program, said that to his knowledge this is the first arbitration case to challenge an employer’s right to use a customer service social media account.

“The law has been clear for a while that an employer has a legal duty to take all reasonable steps to prevent harassment of employees, even harassment by customers or the public. This decision clarifies that this duty extends to comments made by the public through the employer's social media accounts as well,” Doorey said.

The TTC can't prevent offensive tweets, “but it can do a better job of discouraging and demonizing them and showing its employees that it has their back when harassment happens,” he said.

Signorile retired in January. In an interview he told the Star that while he believed the TTC should have been directed to pay damages, the union “got a lot” out of the ruling, which he said showed that “the TTC dropped the ball on many fronts.” He said that since social media use became widespread, transit workers have been under intense, often unfair scrutiny. He cited the 2010 case in which a fare collector was ridiculed after being photographed sleeping on the job. The worker divulged he had health concerns that could explain why he fell asleep, and he died 10 months later.

Current union representatives didn’t return requests for comment this week about the arbitration.

TTC spokesperson Brad Ross said the commission’s legal counsel was still reviewing the ruling, and management intends to meet with the union later this summer. He stated that since the grievance was filed, @TTChelps has stepped up its response to abusive tweets, and Twitter has also made it easier to report inappropriate posts and have the content removed.

“We will and have been pushing back, asking people to be more respectful, and if they’re not we won’t engage any further with them, and we will then report them if necessary,” he said. “We have a tremendous amount of empathy and respect for our employees and we do everything we can to support them.”

With a file from Emily Mathieu

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