Burnaby baker keeps $40K for wrongful dismissal after appeal fails

Cafe la Foret’s arguments that the lower court erred in finding it was justified in firing the employee weren’t enough to change the ruling or the $40,000 award.

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A Burnaby cafe has lost an appeal of a B.C. court decision that awarded $40,000 in damages to an employee who was fired for sexual harassment.

Song Hwan Cho was the head baker at Cafe La Foret. In November 2020, a junior employee, Nam Gyeong Lee, then 28, complained to her boss that Cho, then 60, had touched her three times, including on the buttocks, court records state.

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Cho was terminated without notice, prompting him to sue the cafe for wrongful dismissal in B.C. Supreme Court. At trial, Cho said he was just explaining to the employee where he had received a recent massage. The cafe argued it had just cause for the termination as Cho had sexually harassed an employee.

The lower court judge ruled the touches were “entirely inappropriate” and constituted sexual harassment, but ultimately found the misconduct was “not sufficient to justify termination.”

In awarding aggravated and punitive damages, the judge cited that the cafe had refused to issue a record of employment to Cho unless he signed a “self-incriminating affidavit” that made it appear as if he was a “dangerous sexual offender.”

The cafe argued on appeal that the judge, among other things, failed to consider Cho’s total behaviour, including that he lied about touching Lee on the buttocks and that he wouldn’t apologize. The cafe also argued the lower court judge erred in assessing whether the sexual harassment was enough to fire Cho and erred in judging the severity of the harassment.

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But the B.C. Appeal Court said Cho admitted to his manager he had touched her on the arm, shoulder and buttock, and asked if he should apologize or quit.

The appeal court said the employer established only that Cho sexually harassed Lee. And the appeal court said while “all sexual harassment is serious,” the touching in this case was “relatively minor on the range of physical contact,” such as more prolonged touching, more extensive body contact and forced kissing and fondling.

The three-judge appeal court did agree with the cafe on one thing: the $40,000 award by the lower court included a “global award” of $25,000 for aggravated and punitive damages.

The appeal court agreed with the cafe that they shouldn’t have been assessed together. 

But it said the $25,000 should stand alone for aggravated damages because Cafe La Foret’s conduct was “highly blameworthy” because “it refused to provide Mr. Cho with a (record of employment) unless he signed the affidavit.”

“Cafe La Foret knew (signing the affidavit) would place Mr. Cho in legal jeopardy in criminal proceedings,” the appeal court ruling said.

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“An award of $25,000 is an appropriate award for aggravated damages to compensate Mr. Cho for the mental distress he experienced over the form of his dismissal,” said the ruling by Justice Lauri Ann Fenlon.

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