Stuck Between a Rock and a Hard Place – Cho v Café La Foret Ltd, 2022 Overview

• Mr. Cho was employed as a baker by Café la Foret, the Employer.
• Mr. Cho was terminated without notice in November 2020, when the Employer alleged that they had just cause because he had sexually harassed and bullied another employee, his subordinate that he worked alongside.
• He was officially terminated after he refused to sign an affidavit admitting to misconduct.
• He denied the allegations and sought $52,000 in damages in lieu of ten months notice, and $100,000 in punitive/aggravated damages for the manner of his termination.
• The court found that, while Mr. Cho had sexually harassed his subordinate, this was not sufficient to justify his dismissal because “this is not a situation where the misconduct was irreconcilable with sustaining the employment relationship.”

Why This Decision is Important

The Employer did not have a sexual harassment policy, and the court factored this in to their determination. They found that Mr. Cho was not been warned prior to his actions that such conduct could get him fired.

Case Details

The termination was at issue here, because of the way the Employer conducted themselves. The Employer did not initially terminated Mr. Cho, but told him to “go home and wait for a call,” and then told him not to attend work the next day. This was after Mr. Cho had asked if he should apologize to his subordinate or quit his job. At this point, the Employer said he was not terminated, but sent him an affidavit, with an apology to his subordinate, that they said he had to sign to keep his job. He refused and asked for his Record of Employment, which the Employer was slow to provide.

The court found that Mr. Cho was terminated for his refusal to sign the affidavit admitting to his misconduct, rather than for his actual misconduct. The court found his refusal warranted though, because “the Employer effectively forced him to choose between incriminating himself and facing possible criminal charges, or keeping his job.”

Accordingly, the court found that Mr. Cho’s termination for this reason constituted unjust dismissal.

Outcome

Mr. Cho was awarded $40,600 in damages. The court made a global award of $25,000 in aggravated and punitive damages for the manner of the termination, noting that the Employer was highly blameworthy because they knew the risk of Mr. Cho facing criminal proceedings if he signed the affidavit they provided. The Court also awarded Mr. Cho $15,600 in damages in lieu of notice.

Key Takeaways

• Mr. Cho had greater damages awarded against him due to the manner in which the Employer handled his termination.
• The Court found that the Employer “took advantage of Mr. Cho’s emotional and financial vulnerability be refusing to provide him with an ROE unless he signed the affidavit,” which would put him in legal jeopardy.
• It is important for employers to respond appropriately to allegations and incidents of sexual harassment.

References

Cho v Café La Foret Ltd, 2022 BCSC 1560
https://canlii.ca/t/jrrj4

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