I would like to comment on the sad (in my view) Cho v Cafe La Foret decision from the BC Supreme Court.
Cho was the head baker at the cafe. He did not have even a brief written contract with the employer Cafe La Foret. Ms. Lee was a younger kitchen worker. At the material time, they were alone in commercial kitchen.
Cho was having some back issues. He had gone to a masseuse re same. He showed Ms. Lee where the pain was by tapping her shoulders, and briefly tapping her buttocks.
She complained to management and to her husband. She also went to the police, although no charges were brought.
Cho offered to management that he would apologize to her.
Management used a fellow who used to be a lawyer, and that fellow insisted that Cho sign/swear an affidavit about his wrongdoing. There were several inaccuracies in the affidavit and according to the wording of it, if Cho signed, he would not be able to work in the kitchen again. He refused to sign and swear it.
The employer dismissed him for “just cause” and Mr. Cho sued for wrongful dismissal.
The trial judge found that neither Ms. Lee nor Mr. Cho were great witnesses. There was low quality CCTV footage from the kitchen and there was a text sent by Ms. Lee to a co worker right after the event that helped the judge decide that there was low level sexual harassment from the event.
The question for the trial judge was whether that finding warranted a “just cause” firing. The judge held that it did not.
The further issue was whether there should be punitive damages since the employer tried to get Mr. Cho to sign an affidavit, in order to keep his job, when the affidavit would have put him in criminal court jeopardy, if the police had agreed with Ms. Lee’s request for a criminal charge of sexual assault.
The judge held that there should be punitive damages leveled against the employer for that.
What lessons can we learn from this case?
1. If the employer had even a one page written employment agreement that listed a short term suspension without pay as a punishment for misdeeds, rather than having to use the risky termination process, this case could have been avoided.
2. Doing nothing about activities that are, or could be, sexual harassment, is risky, but being overly aggressive with an alleged perpetrator employee is also risky.
3. Being cheap by using low quality CCTV can lead to problems and by using an unqualified person to draft an affidavit and push it on an employee to sign as a condition of keeping employment, will always be risky.