An employer who forced a worker to choose between signing an affidavit that could incriminate him and lead to criminal charges or keep his job has been ordered to pay $25,000 in punitive damages by the Supreme Court of British Columbia.
Song Wan Cho, a man in his early 60s, worked as head baker at Cafe La Foret in Burnaby, B.C. He was terminated for cause in November 2020, with the employer alleging he had sexually harassed and bullied another employee.
Cho denied the allegations, and sued for $52,000 in damages in lieu of 10 months’ notice and $100,000 in punitive/aggravated damages for the manner of his termination.
Background
Cho worked at the cafe from Dec. 1, 2017, to Nov. 30, 2018; and again from April 1, 2019, to Nov. 9, 2020. He did not have an employment contract.
As head baker, he was responsible for training and supervising bakery employees, recommending discipline, assisting in recruitment and more.
The victim of the harassment and bullying testified that, on Nov. 9, 2020, she was working alone with Cho. He began talking to her about a massage he had received, she said. He told her he had pain in the back of his neck, shoulder and sacrum.
While doing so, he pointed to those parts of his own body. Then, he touched the victim’s back in the shoulder and neck areas. When discussing the pain in his sacrum area, he put his hand on her right buttock and pressed it firmly twice, she said.
CCTV cameras in the cafe caught three movements — a motion of his right hand towards the area of her shoulder; a tap with his right hand on the left shoulder; and what appears to be an open-handed touch on the right-hand of her upper back which lasted about one to two seconds, the court said. During this time, they appeared to be in conversation.
The victim said she felt uncomfortable when he touched her. The CCTV footage doesn’t show her stepping back, but did show her “moving around the kitchen in a manner consistent with attempting to maintain some physical distance” from Cho, the court said.
She said she didn’t speak to him about it, because she was worried he would take revenge on her by giving her difficult tasks or stopping her from taking breaks. She said the touching continued throughout the day, and she complained to the front counter manager about it.
She ended up leaving work early because she was so distraught. She continued working for one week, but her health deteriorated and she ended up in hospital because of stress. She missed one-and-a-half weeks’ work as a result.
On Nov. 19, the victim filed a police report.
Credibility
The court said it had concerns about the reliability of some of the victim’s evidence, and some concerns about her credibility.
While there was no question she was touched without consent, the details she provided were “inconsistent, confusing and often vague,” wrote Justice Shergill.
For example, she gave varying accounts about how, when and where she had been touched.
Cho admitted he touched her without consent, but said it occurred only once on Nov. 9. He said he touched her while discussing her massage, only briefly, and did it without thinking. He denied any sexual intentions.
“The CCTV footage reveals that while the first touch could be described as a light tap, the second touch was in the form of a pat on the upper back,” the court said.
He said there was no negative reaction from the victim, and they continued working alongside each other. “I note that just because someone continues to work alongside a person that they say has harassed them, does not mean that the harassment did not occur or that they were consenting to the touching,” wrote Justice Shergill.
The court also had some concerns about Cho’s credibility. He initially denied touching her at all, but when he saw the CCTV footage he admitted to “tapping” her twice on the shoulder.
Was it sexual harssment?
The court concluded that while chatting about the massage was not harassing behaviour, Cho 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 court said.
It also found the touching was sexual in nature, even though Cho said he didn’t view it that way. In particular, the court found he did indeed touch her on the buttocks at one point.
“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,” it said.
The court did not find evidence that Cho had bullied the victim or had harassed her prior to the Nov. 9, 2020, incident.
Abuse of authority
Because Cho had supervisory duties, the court said he was her superior and in a position of power in relation to her. Therefore, his actions on Nov. 9 constituted an abuse of his authority, the court said.
The employer’s response
Dong-Hyuk Kwak was the general manager at the cafe. The front counter manager, who the victim complained to, reported the events to him on Nov. 9. He sought out the woman, and found her standing outside talking on the phone and crying.
He told her to leave and go home.
Kwak talked to Cho, who offered to apologize to the victim. He also asked if he should quit. Kwak didn’t tell him to do either, but said an investigation would be conducted and he should go home and wait for a call.
Later that evening, Kwak talked to the victim’s husband and told him Cho had admitted to the inappropriate touching and would be agreeable to providing an apology. The husband said they did not want to hear an apology from Cho.
Later, a decision was made to prepare an apology letter on behalf of Cho. The letter was prepared in the form of an affidavit based on information provided by Kwak. There was reluctance by Cho to sign it, and he was terminated on Nov. 17.
The court found the termination was a result of his refusal to sign the affidavit admitting to misconduct rather than the misconduct itself.
No cause for dismissal
The court said the proven misconduct by Cho was not enough to warrant dismissal. The employer itself essentially admitted that because it did not decide to terminate him after it completed the investigation.
“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 (the victim) to be sufficiently serious to justify termination,” the court said.
Cho said he refused to sign the affidavit because he could not agree with the statements made in it, including wording that “made him out to be a sexual offender,” the court said.
The court said the affidavit was designed to be used for legal purposes, rather than repair the relationship between Cho and the victim. That was because the victim was very clear she wanted to go to the police and wanted a signed document. And, the affidavit was drafted in English rather than Korean, the preferred language of communication for both Cho and the woman.
It also contained a provision that he promised not to contact the victim or “any other current, former or future female staff member of La Foret for any reason” and that if he breaches this promise, “such female staff member could be severely emotionally distressed as a result.”
Since there were other female employees at the worksite, it would mean he would have to do his job completely alone, which was impossible.
In short, the court said the employer forced Cho to choose between incriminating himself and facing possible criminal charges as a result — or keeping his job.
Damages
The court calculated Cho’s length of service as 31 months. It awarded five months’ pay in lieu of notice, or $26,000.
It reduced that award by two months for Cho’s failure to mitigate his damages by finding another job, taking the total to $15,600.
The court said the fact the employer put Cho in a position to choose between his job and potentially admitting criminal wrongdoing was unfair. It was aware of the significant legal jeopardy he would place himself in by signing it.
“The employer took advantage of Mr. Cho’s emotional and financial vulnerability by refusing to provide him with an ROE unless he signed the affidavit,” the court said.
As a result, it awarded $25,000 in aggravated and punitive damages for the manner of the termination.
For more information, see Cho v Café La Foret Ltd., 2022 BCSC 1560 (CanLII)
