A baker who was fired from his job at Burnaby’s Café La Foret after he touched a younger female subordinate at work without her consent has been awarded $40,600 in a wrongful-dismissal lawsuit.
Song Hwan Cho was the head baker at La Foret on Nov. 9, 2020, according to a recent ruling in B.C. Supreme Court.
Because of COVID-19-related public health orders, only two people were working in the bakery area of the café that day: 60-year-old Cho and 28-year-old Nam Gyeong Lee, a baker who reported to him, the ruling said.
According to Lee, she and Cho were standing next to each other at the bakery station counter when Cho began talking about a massage he’d had the day before.
Lee said Cho told her he had had pain in the back of his neck, shoulder and sacrum, and, while he was talking, he pointed to those parts on his own body and then proceeded to touch Lee’s upper back, shoulders and neck area.
When discussing the pain in his sacrum, Lee said Cho put his hand on her right buttock and pressed it firmly twice with his hand, according to the ruling.
Cho, however, “vehemently denied” touching Lee’s buttocks, according to the ruling.
He admitted he touched Lee without her consent but said the touching consisted of “two light taps on her shoulder,” the ruling said.
Cho was terminated after Lee complained about the incident to a manager.
The only witnesses who saw the touching were Cho and Lee, according to the ruling, and B.C. Supreme Court Justice Palbinder Kaur Shergill noted the credibility and reliability of Cho and Lee were central to the resolution of the case.
Shergill expressed concerns about both.
She noted Cho had initially denied touching Lee at all until he was shown security video that had captured him touching her.
And Shergill said Lee’s evidence about what happened between her and Cho was “inconsistent, confusing and often vague.”
While Lee told the court Cho had put his hand on her right buttock and pressed it firmly twice with his hand, a text she sent to a friend that day said Cho had “tapped” her buttock.
In the end, Shergill ruled Cho’s touching – which she concluded had consisted of a “brief light tap” on the shoulder, a “brief open-hand pat” to her upper back and a light tap in the buttock area – had amounted to sexual harassment.
“Even if it was in the form of a ‘tap,’ the intentional placement of his finger or hand on Ms. Lee’s buttocks was entirely inappropriate,” she said.
But Shergill also concluded Cho’s misconduct was not sufficient to justify termination without notice.
Among her reasons, Shergill noted Cho’s misconduct had been “relatively minor” on the “spectrum of workplace sexual harassment;” Cho had not been warned prior to the incident that such conduct could get him fired; and La Foret didn’t have a formal sexual harassment policy.
Shergilll also took issue with an apology letter, in the form of an affidavit, that La Foret had tried to get Cho to sign.
Cho had refused.
He told the court the affidavit “made him out to be a sexual offender.”
It also exposed him to legal jeopardy, according to Shergill, since Lee had reported the incident to the police.
“I find that the requirement that Mr. Cho sign the affidavit, prior to being reinstated at his job, was wholly inappropriate,” Shergill wrote. “By putting Mr. Cho in that position, the employer effectively forced him to choose between incriminating himself and facing possible criminal charges as a result, or keeping his job.”
Shergill noted the affidavit plan also undermined La Foret’s argument that its firing of Cho for sexual harassment had been justified.
“By maintaining that Mr. Cho could keep his job if he provided the affidavit admitting his guilt, the employer did not consider his misconduct against Ms. Lee to be sufficiently serious to justify termination,” Shergill said.
In his lawsuit against La Foret, Cho sought $52,000 in damages in lieu of 10 months’ notice and $100,000 in punitive and aggravated damages for the manner of his termination.
Shergill awarded him $15,600 in damages in lieu of notice, $25,000 in aggravated and punitive damages and court costs.
A police file related to the incident at La Foret on Nov. 9, 2020 has been closed without charges, according to the Burnaby RCMP.
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