Canada: Roasted: Investigation Conduct Lands Employer Café In Hot Water

In the recent case of Cho v Café La Foret, the Supreme Court of British Columbia found that the Plaintiff was wrongfully dismissed and awarded him damages equivalent to a reasonable notice period and as well $25,000 in punitive and aggravated damages. The decision, which stands out for its bizarre fact pattern, is instructive employers who are dealing with a complaint of sexual harassment within the workplace.

Background

The Plaintiff, a 60-year old Head Baker of the Defendant, was accused of sexual harassment of a much younger female subordinate employee by briefly touching her on the back of her neck, her shoulder, and later near her right buttocks. The Plaintiff was also accused by the employee of bullying her by refusing to let her eat an afternoon meal the same day as the touching incident.

The complainant left work after a second instance of touching by the Plaintiff. Her husband learned of the incident and confronted a manager, demanding that something be done about the Plaintiff.

Shortly thereafter, the Plaintiff was called into a meeting by the manager and was presented with the complainant's accusations. The Plaintiff admitted to having touched the employee but denied that the touching was sexual and asserted that he was merely demonstrating where he had experienced pain in the course of discussing a recent therapeutic massage. He offered to apologize or to quit in order to resolve the situation, but was instead told to not come to work temporarily.

The Defendant ultimately decided to seek a letter of apology would be sought from the Plaintiff. The "apology letter" was drafted in the form of an affidavit. A term of the affidavit was that the Plaintiff would not contact the complainant or any other current, former or future female employee of the Defendant for any reason.

The Plaintiff refused to sign the affidavit and was subsequently terminated by the employer. The Plaintiff then commenced a wrongful dismissal lawsuit against the Defendant.

The Decision

The Defendant advanced three reasons for terminating the Plaintiff: the sexual harassment of the complainant, his dishonesty during the investigation, and his unwillingness to apologize or show contrition or remorse. The latter two grounds were found to be unsupported by the evidence and unsubstantiated. Therefore, the court was left to consider whether the alleged sexual harassment was sufficient to justify the dismissal.

The Court found that the touching was sexual in nature, and that however brief, it was intentional, unwarranted and non-consensual. Nevertheless, the Court stated that the Plaintiff's actions reflected a "gross error of judgment, rather than an act committed for sexual gratification or with the intention of violating [the employee's] bodily integrity."

The Court then considered the Plaintiff's refusal to sign the affidavit and found that there were numerous problems with the contents of the affidavit, and with the Defendant's request that the Plaintiff sign that document. The affidavit had factual errors and, more importantly, was to be used to facilitate a complaint made to police by the complainant rather than to repair any fractured relationship between the Plaintiff and the complainant. The Court found that it was impossible for the Plaintiff to comply with the terms of the affidavit, which prohibited from contacting the complainant or any "current, former or future female staff of [the Defendant] for any reason." Effectively, the Court determined, the Plaintiff was being asked to choose between incriminating himself and facing possible criminal charges as a result, or keeping his job.

The Court ultimately concluded that given the Defendant's willingness to reinstate the Plaintiff if he signed the affidavit, it was his refusal to sign that document that was the real reason for his termination – not his initial misconduct towards the complaint. The Plaintiff's own actions, in offering continued employment in exchange for the signing of the affidavit, demonstrated that it did not consider the initial misconduct to have irreparably broken the employment relationship.

The Plaintiff was awarded five months of pay in lieu of reasonable notice of termination, with a two-month reduction for the Plaintiff's failure to mitigate his damages. Perhaps most notably, the Plaintiff was awarded $25,000 for punitive and aggravated damages, with the Court that by refusing to issue his ROE before he signed the affidavit the Defendant placed the Plaintiff in "serious legal jeopardy" and "took advantage of Mr. Cho's emotional and financial vulnerability by refusing to provide him with an ROE unless he signed the Affidavit."

Concluding Thoughts

Sexual harassment claims are by their very nature difficult to handle. As the case demonstrates, individuals are rarely able to consider and evaluate such an emotionally fraught situation in an even-handed and dispassionate way. Employers dealing with sexual harassment claims are advised to speak to a lawyer experienced in such complex claims, especially if they are considering termination as a result.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.