While an employer can’t regulate what is posted about the business or its workers on social media generally, it can be responsible where those posts or tweets are made on, or to, its official account.

A Canadian decision has found that an employer failed to adequately protect its employees from abuse on the employer’s social media channel. Could it happen here in Australia?

The Canadian decision

In a recent labour arbitration ruling in Ontario, Canada, Arbitrator Robert D. Howe ruled that the Toronto Transit Commission (TTC) failed to take all reasonable and practicable measures to protect its employees from harassment from members of the community through its customer feedback Twitter account @TTChelps.

In evidence, the Manager of TTC’s Customer Service Centre testified that the @TTChelps account was established because:

“…our customers expect us to have it. Social media is incredibly important and continues to grow. Customers expect to be served through a channel of their choice. Different generations expect different experiences so we are being responsive to what our customers want. Having @TTChelps on Twitter allows customers to contact us from their smart phones wherever they are and at any time, so by us having that presence we’re easily accessible.”

This is a laudable aim and one mirrored by many companies who have decided to establish an interactive social media presence facilitating contemporaneous customer feedback and response.

However, the applicant in the arbitration, the Amalgamated Transit Union, contended that the way the TTC utilised the @TTChelps account constituted a breach of obligations owed to employees under the Occupational Health and Safety Act, the Human Rights Code, provisions of the applicable collective agreement and various TTC policies.

The Arbitrator found that while most of the tweets received by the @TTChelps account were either complimentary or expressed criticism in appropriate terms, a “small but significant minority” of critical tweets contained language that was “vulgar, offensive, abusive, racist, homophobic, sexist and/or threatening”.

Some of the abusive terms recounted in the arbitration judgment included (and this is merely a small, publishable, relatively benign sample): “bitchy bus drivers”, “morons”, “pricks”, “rudest people on the planet”, “insane”, “idiot”, “grumpy bastard”, “moron driver” and “overweighted ginger with a grouchy attitude”.

The Arbitrator considered the responses by @TTChelps to offensive tweets, which generally involved a mild admonishment to the sender of the tweet but nevertheless entertained the underlying complaint, to be inadequate. The Arbitrator held:

“To deter people from sending such tweets, @TTChelps should not only indicate that the TTC does not condone abusive, profane, derogatory or offensive comments, but should go on to request the tweeters to immediately delete the offensive tweets and to advise them that if they do not do so they will be blocked. If that response does not result in an offensive tweet being deleted forthwith, @TTChelps should proceed to block the tweeter. It may also be appropriate to seek the assistance of Twitter in having offensive tweets deleted. If Twitter is unwilling to provide such assistance, this may be a relevant factor for consideration in determining whether the TTC should continue to be permitted to use @TTChelps.”

The judgment gives rise to an interesting dilemma for employers. On the one hand, in order to maintain integrity and credibility a social media customer feedback account needs to be receptive to robust criticism about the organisation. Blocking customers or seeking to delete comment is sometimes perceived by those aggrieved customers (and others on social media) as censorious, arrogant and dismissive. On the other hand, where identifiable staff members are being abused, then the health and safety of those identified, as well as those operating the social media accounts directly in the firing line of the abuse, can be put at risk, enlivening an employer’s obligation to protect them.

What is the position in Australia?

While the case discussed above is from Canada it gives rise to the question as to whether the anti-bullying provisions under the Fair Work Act could extend to similar circumstances. In short, the answer is yes.

Under the Act a worker is bullied if, while at work, an individual, or group of individuals, repeatedly behaves unreasonably towards that worker, and that behaviour creates a risk to the worker’s health and safety.

A customer can be a “bully” for the purpose of the Act. In the Full Bench FWC decision of Bowkar and Others v DP World MUA and Others [2014] FWCFB 9227 (which dealt with conduct over social media) it was held:

“The individuals engaging in the unreasonable behaviour need not be workers, for example they could be customers of the business or undertaking in which the applicant works.”

As well as the anti-bullying provisions of the Act there are also broader obligations under Work Health and Safety legislation to address risks to health and safety (which include psychological wellbeing) to consider.

What should employers do?

While an employer can’t regulate what is posted about the business or its workers on social media generally, where those posts or tweets are made on, or to, its official account, the employer should make it clear that offensive, personalised attacks on workers are unacceptable and not tacitly condone such attacks by doing nothing or responding inadequately.

As such, situations of this kind should be addressed in an employer’s social media policy. The appropriate response will depend upon the circumstances of each case but guiding principles and processes should be established for dealing with abusive situations. This might not necessarily entail blocking (as was ordered by the Arbitrator) but will likely involve some form of emphatic, unequivocal censure of such conduct and a message that while criticism is welcome, it needs to be expressed in appropriate, civil terms that focuses on the underlying service or product issue rather than being a vehicle for gratuitous, ad hominem attack.

Article by Michael Byrnes of Clayton Utz