Despite misconduct, 'employer needs to be cognizant of its own actions in termination process'
“Even though an employee… may have conducted themselves very poorly or in a wrongful manner, the employer still needs to be cognizant of its own actions in the whole termination process.”
These words of caution from Natalia Tzemis, an employment and labour lawyer at Harris and Company in Vancouver, come after the British Columbia Supreme Court awarded $25,000 in aggravated damages to a worker who was fired for workplace sexual harassment.
“This is an interesting case where it was found that [the worker] did sexually harass a subordinate, yet the employer was subjected to an award of aggravated and punitive damages against it because of its own conduct in the whole scenario,” says Tzemis.
The 62-year-old worker was head baker for Café La Foret in Burnaby. He was hired in December 2017 with a four-month break from November 2018 to April 2019 when he worked at another bakery.
La Foret did not have a written bullying and harassment policy and the worker did not have any discipline during his tenure.
On the first day of a new shift schedule, Nov. 9, the worker was scheduled with a female subordinate who was worried about having to work with him because he had previously touched her without her consent. She expressed her discomfort to a co-worker who was finishing up the previous shift.
Early in the shift, the worker mentioned a massage he had received. He said that he had pain in his neck, shoulder, and sacrum – the small of the back – then touched the subordinate’s back, both shoulders, and neck. When he discussed his sacrum area, he put his hand on her right buttock and pressed it firmly.
The worker tried to keep distanced from him and didn’t tell him about her discomfort because she was worried that he would assign her difficult tasks or prevent her from taking breaks.
The subordinate complained to the front counter manager, but when she returned to the kitchen, she claimed he touched her again on her right buttock. The subordinate became angry and asked him loudly why.
After the second incident, the subordinate went to the washroom and cried. She texted her co-worker and said that the worker kept touching her and told her not to take a meal break.
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Management investigated complaint
The subordinate spoke to the general manager and the head chef the next day. The general manager then met with the worker, who acknowledged lightly touching the subordinate’s shoulder and back. He said he did it without thinking and that the subordinate didn’t react negatively. As for the second incident, he denied touching her and said that she was upset about other work issues.
The general manager looked at surveillance camera footage, which showed the worker appearing to tap the subordinate’s shoulder and back and her appearing to try to stay distanced from him afterwards. The footage also showed the second incident, but it didn’t clearly show touching. The subordinate explained that it happened behind equipment or when the worker’s body was blocking the camera.
The worker was told that touching a female subordinate was wrong and he acknowledged making a mistake. He offered to sign an apology letter or quit if he had caused distress to the subordinate, but the general manager said they would investigate further.
Management met with the subordinate again and spoke to other staff. The corporate secretary drafted an affidavit that referred to “inappropriate touching” and required the worker to avoid contact with other female staff members. They believed that they could still work together if the worker signed the affidavit.
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Worker refused to sign affidavit
The general manager texted the worker to call him, but the worker said to send the apology letter and a record of employment (ROE) first. The general manager emailed the affidavit, but the worker refused to sign it for legal reasons. After his refusal, La Foret sent an ROE on Nov. 17 with “dismissal” as the reason for issue. A second ROE was sent the next day stating that the worker had been dismissed “due to his sexual harassment and bullying of female subordinate staff.”
On Nov. 18, the subordinate made a harassment complaint to police.
The worker filed an action for wrongful dismissal and breach of contract.
The court found that the evidence showed that the worker touched the subordinate inappropriately during the first incident. It was intentional, unwarranted, and non-consensual – “a gross error of judgment, rather than an act committed for sexual gratification,” but touching the subordinate’s buttocks gave it sexual connotations, said the court.
La Foret’s initial steps once it learned of the harassment allegations were good, as it investigated and interviewed everyone involved, says Tzemis.
“I think where it fell apart for the employer is that, ultimately, the employer didn't seem to terminate the employee in real time as a result of the sexual harassment, and so that made it a little bit more challenging for the employer to assert that it was a strong basis for terminating [the worker],” she says.
Employers should be aware of the difference between normal distress from termination and aggravated distress from bad-faith termination, says an employment lawyer.
Dishonesty, lack of remorse not proven
La Foret relied on three grounds for termination – sexual harassment, dishonesty during the investigation, and an unwillingness to apologize. While the harassment was proven, there was no evidence that the worker was dishonest – he admitted to the touching in the interview, said the court.
In addition, the court noted that the worker offered to apologize or quit, which showed remorse once he was made aware of the subordinate’s distress.
The refusal to sign the affidavit was also not sufficient to justify termination, as the worker could not agree with statements describing him as a sexual offender, said the court, and the affidavit’s provision to not contact any female staff members would have made it impossible to do his job. In addition, signing it would have forced the worker to incriminate himself, the court said.
With only the first ground proven, it came down to whether it justified termination. The court found that the touching was “relatively minor” on the spectrum of sexual harassment.
The court also found that the worker had never been warned about inappropriate touching and La Foret had no formal harassment policy. The worker’s age, position, and lack of prior discipline created an obligation for La Foret to give him a warning or an opportunity to change, the court said.
Employment relationship salvageable
The court determined that the employment relationship was not irreparably damaged, as management didn’t initially fire him for the harassment. La Foret’s conduct following the investigation went a long way toward the court finding that the employment relationship was still viable, says Tzemis.
“The employer treated it as though there was an opportunity for this to end well for both the employee and the employer in that they could continue working together in the future,” she says. “It wasn't until the relationship started to break down because of the affidavit issue that the employer decided that it was going to end the employment relationship after all.”
“The nature of the sexual touching was a big factor to suggest that this wasn't the kind of egregious sexual harassment conduct that would justify dismissal immediately without the need for warnings or some further conversation with the [worker] to give him the opportunity of correcting his behavior,” adds Tzemis.
The court found that both of the worker’s stints with La Foret should be counted toward his service given the short break between them and that five months’ notice was appropriate. It deducted two months after La Foret provided evidence that the worker’s mitigation efforts weren’t reasonable.
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Employer’s bad-faith conduct
The court also determined that La Foret’s requirement that the worker sign an affidavit making him out to be a sexual offender to save his job and before he received his ROE was in bad faith.
“[The affidavit] crossed over from what would be described as a letter of apology to something very different in nature, which had much stronger legal implications were the employee to sign it,” says Tzemis. “So that created a problem, especially in light of the fact that [the subordinate] was looking to get the [police] involved and that affidavit would potentially be used in criminal proceedings.
“That was particularly egregious – the judge’s view would have been different if they drafted a simple apology letter in which [the worker] apologized for the incident.”
La Foret was ordered to pay the worker three months’ pay in lieu of notice plus $25,000 in aggravated and punitive damages. See Cho v. Café La Foret Ltd., 2022 BCSC 1560.