Employer not concerned with inspection, but owner angry about misconduct
A worker’s dismissal was related to sabotaging his co-workers and not an anonymous safety complaint he made, the Ontario Labour Relations Board has ruled.
Taylor & Colt One York operated a barbershop in downtown Toronto, offering haircuts, shaves, and other similar services. The owner and a director handled the day-to-day management of the barbershop, although sometimes neither were there.
The worker was a licensed barber hired by Taylor & Colt in July 2021. He was the only one of six barbers working there who had his license, which required 1,500 hours of apprenticeship and passing an exam.
In October 2022, the worker made an anonymous complaint to the Ontario Ministry of Labour, Immigration, Training and Skills Development about hazards in the barbershop. He said that he had seen a co-worker dispose of used razor blades in a garbage bin instead of a special container as well as improper cleaning of blood. He also reported that his co-workers were not licensed barbers.
Visit from health and safety inspector
The ministry sent a health and safety inspector to the barbershop on Oct. 20. The inspector’s report stressed the need for Taylor & Colt to get its barbers licensed but didn’t make any orders. The inspector advised that his focus for the visit was the licensing requirement for the barbers.
In February 2023, the director emailed the worker about undercharging two customers and gave him a “final warning” that the owners needed to pre-approve any price changes. The worker said that other barbers did it and weren’t criticized, but he acknowledged the warning.
On Feb. 24, the inspector paid a follow-up visit to the barbershop and told the owner that he was investigating a complaint, although the worker had not made another complaint.
Once again, the inspector was focused on the licensing of the barbers and reported that both the owner and one of the employees said that they were scheduled to take the exam. Once again, no orders were issued and the owner viewed the inspector’s report as “all positive.”
Inspector identified source of complaint
In March, the inspector called the worker to tell him that he had accidentally identified the worker as the person who had filed the anonymous complaint. At the time, the owner said that she thought the complaint had been made by another barbershop next door.
The worker was the most senior of the barbers at Taylor & Colt, so most of his repeat clients came from appointments booked online. New barbers got their business mostly from walk-ins or customers calling on the phone. The latter became a problem because of issues starting in late 2022 with the phone’s volume control, resulting in missed customer calls.
The phone was replaced a couple of times, but the problem with the ringer volume continued. One barber reported that on two different occasions the phone had not rung for the first couple of hours of his shift and, when he checked, he saw that the ringer volume was on the lowest setting and there were missed calls. Both times, the worker was also working at the barbershop.
The owner reviewed footage from the shop’s security camera and saw on the two days in question that the worker arrived at work and immediately changed the volume on the phone. Since the other barber had reported putting the volume on the proper setting when he left at the end of the day and it was turned down the next day, the owner determined that the worker was turning down the ringer volume.
Termination of employment
The owner was angry over this, as the missed calls potentially led to lost business for the barbershop as well as the newer barbers who relied on calls for clients. On March 15, she told the worker to stop playing with the phone, although the worker didn’t admit to doing it. The worker later said that he told her that he didn’t know how to adjust the ringer volume on the phone, although he acknowledged that the volume problem had been going on “for months.”
Two days later, on March 17, Taylor & Colt terminated the worker’s employment without cause. The termination letter stated that “as a result of operational changes, your position is being eliminated” and a Record of Employment (ROE) indicated a “shortage of work/end of contract.” The barbershop provided the worker with three weeks’ pay in lieu of notice in accordance with the Ontario Employment Standards Act.
The worker filed a complaint under the province’s Occupational Health and Safety Act (OHSA) alleging that his employment was terminated at least in part because he exercised his rights under the OHSA by reporting what he believed to be occupational hazards to the ministry. The OHSA prohibits discipline, dismissal, or threats to a worker that are related to the worker acting in compliance with or seeking enforcement of the OHSA.
Taylor & Colt maintained that the dismissal was unrelated to the complaint and was related to the worker’s efforts to “sabotage its business and negatively impact the other employees by preventing customers from booking appointments over the telephone.” It also claimed that the owner didn’t learn that the worker made the complaint to the ministry until after the termination when the inspector followed up on the licensing of the barbers.
Employer not concerned with safety complaint
The board noted that the termination letter and the ROE were inconsistent with the owner’s stated reason for termination, but there was no evidence indicating that Taylor & Colt made any efforts to find out who had made the complaint to the ministry. In fact, the owner said that she initially thought the shop next door had made the complaint, the board said.
The board found that the only evidence that Taylor & Colt found out that the worker was the source of the complaint was the inspector telling him that he had accidentally revealed it to the owner. However, there was no confirmation of when this conversation happened and the owner claimed she didn’t find out until after the worker’s termination. After both visits by the inspector, the owner was satisfied with the outcome and no orders with a negative impact on the barbershop were made, said the board, adding that the employer didn’t show any concern about the visits.
The board also found that the barbershop was most concerned about the issue with the phone ringer and the owner was angry when she viewed the security camera footage. It was reasonable to determine that the worker’s termination was because of this and not the safety complaint, said the arbitrator.
The board determined that Taylor & Colt was able to demonstrate that the worker’s safety complaint was not a factor in the decision to terminate the worker’s employment and dismissed the worker’s OHSA complaint. See Mohammad Kazerani v. 10429279 Canada Corporation o/a Taylor & Colt/One York, 2023 CanLII 122596.
