Cho v. Café La Foret Ltd., 2022 BCSC 1560, was a wrongful dismissal action. The plaintiff was in his early 60’s. He had been employed for 31 months. He was employed as a Head Baker by the defendant, Café La Foret Ltd. He was terminated without notice in November 2020. The employer argued that it had just cause to do so, because Mr. Cho had sexually harassed and bullied a female employee, who was his subordinate and worked alongside him in the kitchen. Mr. Cho denied the allegations, and damages in lieu of ten months’ notice, and $100,000 in punitive/aggravated damages for the manner of his termination.
Important to the decision of the Court in Cho was the question of proportionality (McKinley v. BC Tel, 2001 SCC 38). requires the court to undertake a contextual examination of the nature and circumstances of the misconduct: Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 2004 CanLII 43692 (ON CA), 246 D.L.R. (4th) 65 (Ont. C.A.) at para. 49, leave to appeal ref’d [2005] S.C.C.A. No. 25 (S.C.C.). See also recently: Golob v. Fort St John (City), 2021 BCSC 2192 at para. 53.
The Court stated:
[50] Application of the standard consists of:
- determining the nature and extent of the misconduct;
- considering the surrounding circumstances; and
- deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).
The Court rejected allegations of bullying and previous harassment. The Court concluded that Mr. Cho’s actions constituted harassment of the female employee. While chatting with the female employee about a massage that he had received on the weekend, he crossed the line when he touched her while discussing the massage. Though the touching was brief, it was intentional, unwarranted, and non-consensual. It was a violation of her bodily integrity and caused her emotional distress. The touching took on sexual connotations. Even if it was in the form of a “tap”, the intentional placement of his finger or hand on her buttocks was entirely inappropriate and falls within the scope of sexual harassment.
The Court concluded that that Mr. Cho was terminated on November 17, 2020, and that the termination was for his refusal to sign an Affidavit admitting his misconduct, rather than for his actual misconduct.
The Court noted: “The Employer has advanced three grounds to justify Mr. Cho’s termination: his sexual harassment of Ms. Lee, his dishonesty during the investigation of the harassment allegations, and his unwillingness to apologize and show contrition or remorse. Of these three grounds, the Employer has only been able to establish the first one, i.e. that Mr. Cho sexually harassed Ms. “X” by briefly touching her on her shoulder, upper back, and buttocks.” (para. 137).
Referring to an Ontario decision, on whether sexual harassment would constitute cause for termination:
[142] In assessing whether sexual harassment constitutes just cause for termination, Justice Neilson in Brazeau considered the following criteria endorsed by the court in Alleyne v. Gateway Cooperative Homes Inc. (2001), 2001 CanLII 28308 (ONSC) at para. 28:
- the degree and nature of the conduct amounting to sexual harassment;
- the nature of the employment relationship between the offending employee and the victim employee(s), and whether the offending employee was in a position of authority over the victim(s), such that the degree and nature of the conduct was thereby exacerbated by a particularly offensive abuse of power;
- whether the offending employee was told that the impugned conduct was unwelcome or offensive;
- whether the offending employee continued or repeated the unwelcome or offensive behaviour, after being told that the conduct was unwelcome;
- whether the employer warned the employee that the misconduct was inappropriate and that dismissal was a possible consequence of further similar misconduct;
- whether the employer had a formal, and known, sexual harassment policy, which was enforced by the employer;
- the nature of the employment relationship between the offending employee and the employer, including length of service and position, and whether there were implied or express terms of the employment contract which gave rise to additional obligations on the employer’s part, such as with respect to warnings or the opportunity to respond; and
- whether the impugned conduct was condoned by the employer.
Bases on the test, the Court concluded:
[144] After having regard to all of the evidence in this case, I conclude that the proven misconduct on the part of Mr. Cho was not sufficient to justify termination. Specifically, I find that this is not a situation where the misconduct was irreconcilable with sustaining the employment relationship. The Employer’s actions following Ms. “X” complaint is consistent with this conclusion. The Employer investigated Ms. “X”’s allegations against Mr. Cho and concluded that they were founded. Mr. Kwak also met with Mr. Cho and believed that he had admitted to inappropriately touching Ms. “X”. The Employer was also aware that Ms. “X” said she was afraid of Mr. Cho and did not want to see him. From this, one can assume that Ms. “X” would not agree to continue to work with Mr. Cho. Though this could potentially pose problems with respect to scheduling of staff, the Employer did not view this as an insurmountable problem. It was Ms. Park’s evidence that despite everything, she believed that they could all work together again after Mr. Cho signed the apology letter.
In the Court’s view, the employer’s decision not to terminate Mr. Cho following the completion of its investigation of Ms. “X”’s allegations, reflects its view that the employment relationship had not irretrievably broken down. However, the requirement that Mr. Cho sign the Affidavit, prior to being reinstated at his job, was wholly inappropriate. The decision to terminate his employment was unjust.
The Court awarded five moths’ notice, less two for sub-optimal mitigation, and $25,000 in aggravated and punitive damages. The circumstances of this case supported an award for aggravated and punitive damages. For example: a) The Employer refused to issue a ROE to Mr. Cho until he had signed a self-incriminating affidavit. b) The Employer knew the Affidavit would place Mr. Cho in legal jeopardy but tried to exert pressure on him to sign it to Mr. Cho’s detriment. c) The Employer’s offer for Mr. Cho to retain his employment if he signed the Affidavit was disingenuous, and the Employer knew it would be impossible for Mr. Cho to do his job with the restrictions placed on him. [Para. 175].