Massage therapist alleged harassment by supervisor, but acted poorly herself
The termination of a worker’s employment was due to insubordinate behaviour and not allegations of harassment she made against her supervisor, the Ontario Labour Relations Board has ruled.
The worker was a massage therapist hired in early 2022 by Go Place Club, a luxury leisure club and spa in Markham, Ont.
She started training on Jan. 24, 2022, which involved an interview and a demonstration of her massage skills by performing a massage on a manager. Go Place agreed to hire her and she started work on Feb. 11.
The worker’s schedule was 3 p.m. to midnight on Tuesdays, Wednesdays, Fridays, and Sundays. She was required to arrive at least 30 minutes before the start of her shift and had various duties after the end. Go Place paid her $50 for each one-hour massage, which was to increase to $60 after three months.
Adversarial relationship
However, the worker didn’t get along with her immediate supervisor from the start. Two days after the worker started, the supervisor threatened to deduct points from her if she didn’t arrive 30 minutes before her shift – a certain amount of points deducted could impact a worker’s pay. The worker pointed out that the policy stated that she didn’t have to arrive until 15 minutes before her shift, but the supervisor replied that she changed the requirements.
Employees and management used a chat application to communicate on their smartphones, and the worker felt that the supervisor frequently made up her own policies and regularly threatened to deduct points from the worker and other massage therapists on the chat.
On April 1, Go Place sent the worker a general services agreement that obligated the worker to pay the club $800 if she didn’t stay for at least one year. The worker refused to sign the agreement, which made things worse with the supervisor.
According to the worker, a couple of days after she refused to sign the agreement, her supervisor directed her to use oil during a massage. The worker brought this to the attention of another manager who was a medical doctor and he sided with the worker. This upset the supervisor.
Termination of a worker after an adversarial accommodation process was for insubordination and not a failure to accommodate, said an adjudicator.
Harassment complaints
On April 5, the worker started complaining about unfair treatment and harassment from the supervisor. She claimed that she was assigned the most difficult customers and she was the only therapist to be sent home early.
A week later, the worker was speaking with a client’s daughter about a bandage on the client’s arm while the client was in the washroom when the supervisor yelled at her to wait outside of the client’s room and not to make recommendations to clients. She then sent the worker home early.
By April 17, the worker had had enough and requested a meeting with the supervisor, the store manager, and another manager. At the meeting, she complained about the supervisor’s management style and the harassment.
The next day, the supervisor wasn’t at work but checked the computer system that indicated that the worker had reported to work five minutes late. She contacted the worker on the chat app, but the worker provided evidence that she had actually reported an hour early. The problem stemmed from a glitch with Go Place’s wifi that caused time reporting to be inaccurate, which the worker pointed out.
An argument on the app ensued, with the worker telling the supervisor to “improve the management level when accusing and criticizing staff, please check the truth of the matter first, so that it is justified!” The worker included another manager in the text exchange, and when the supervisor raised another work issue, the worker replied that she should ask the front desk and she didn’t want to argue about it.
A worker’s anger at a reassignment that he didn’t like constituted insubordination warranting dismissal, an adjudicator ruled.
Temporary suspension
The worker was placed on temporary suspension the following day, April 19. The worker asked the general manager for her last two days of pay to be added to her invoice so she didn’t have to come back twice and said that she would be returning her name tag and locker key.
The worker followed up with management on April 20, 21, 27, and May 9 to ask about her status, but Go Place did not respond. She then filed an application alleging that her employment was terminated on April 19 in part because she raised legitimate workplace concerns about harassment, contrary to the Ontario Occupational Health and Safety Act. She sought $30,000 for mental suffering and injury to her dignity, reinstatement, and payment for the work she performed in her training.
The board first addressed the worker’s claim for wages for the training on Jan. 24. In the circumstances, the worker was not entitled to any pay because it was a demonstration of her massage skills before she began providing services to Go Place, which was “part of a rather unique interview process” and didn’t constitute work under the Ontario Employment Standards Act, 2000.
The board noted that the worker and her supervisor had an adversarial relationship and the supervisor repeatedly chose to use the chat app to indicate her displeasure for other employees to see. The “unprofessional” argument on the chat app following the argument over the worker’s sign-in time was typical of how things were between them, the board said.
Dismissal was not a reprisal for an insubordinate casino worker’s safety concerns, the Ontario Labour Relations Board ruled.
Disregard for authority
The board found that the supervisor began the unprofessional banter on the chat app and “openly challenged” the worker’s integrity. However, the worker’s responses showed “a blatant disregard for authority” and demonstrated that the trust was broken between them, the board said.
The board also found that it was reasonable to send the worker home to cool off and her insubordinate conduct was the reason for it. Although the worker asked about her return, it was also reasonable for Go Place to wait for an acknowledgment from the worker that she would put it all behind her before she returned, said the board.
In addition, the fact that the worker told the general manager that she was returning her name tag and locker key and requested her last two days of pay to be added to her invoice indicated that she had no intention of returning to Go Place. The lack of response to the worker’s inquiries was related to this and not her harassment complaints, said the board.
The board noted that it had no jurisdiction to determine whether the worker suffered harassment or whether Go Place properly investigated. The worker’s complaint only had to do with whether her dismissal was related to making such a complaint – which it determined that it did not.
The worker’s application was dismissed. See Li Ping Ma v. Go Place Clubs Inc., 2023 CanLII 31488.
