A landmark decision draws attention to the way employers respond to online harassment of employees on corporate social media accounts. This highlights the potential for employers to be held accountable for trolling if they fail to proactively address the issue.
In a recent arbitration ruling in Canada, Arbitrator Robert Howe held that an employer failed to take all reasonable and practicable measures to protect its workers from online harassment on its corporate Twitter account.
The decision stemmed from a complaint by a union representing workers employed by the Toronto Transit Commission (TTC). They alleged employees had been subject to personal attacks by customers through tweets that contained disparaging remarks, threats, and racist and sexist slurs.
Specifically, the union claimed the TTC had breached its obligations under health and safety laws by failing to take action to manage the abuse directed at its workers on its Twitter account.
It was standard practice for the workers managing the TTC’s Twitter account to reply to abusive tweets by addressing the underlying complaint and asking them to refrain from making offensive comments.
However, the Arbitrator highlighted the inadequacies of this approach by stating that the TTC needed to develop a social media policy that required it to:
- actively monitor the comments made on its Twitter account;
- respond to offensive tweets by stating that the company did not condone them; and
- demand users delete any offensive tweets or risk being blocked from the account.
Online harassment directed at workers by customers can clearly pose reasonably foreseeable risks to the health, safety and welfare of workers. Organisations need to take action to mitigate these risks – or run the risk of an employee claim.
Under the anti-bullying provisions of the Fair Work Act, a ‘bully’ can include a customer. Workers can apply for stop-bullying orders if, while at work, they are subject to repeated and unreasonable behaviour that creates a risk to health and safety. Importantly, bullying ‘at work’ is not confined to behaviour that occurs within the physical workplace, but can encompass a worker’s participation in activities authorised by an employer, regardless of their location.
Employers also need to remember that their obligations under work health and safety laws extend to ensuring the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury.
In the Canadian decision, the Arbitrator considered the TTC’s Twitter account had become part of the ‘virtual workplace’, meaning the “abusive tweets came within the definition of what constitutes a poisoned work environment.”
Although organisations cannot control what customers post on social media about their workers, employers should ensure they have policies in place for dealing with online harassment and, in particular, situations where their corporate social media accounts are used as vehicles by customers to make harassing, threatening or discriminatory posts about workers.