Sexual harassment in the workplace is sometimes a complex issue to navigate. Even the most well-meaning employers often get it wrong.

We often see two major issues with how employers handle complaints.

First, they don’t have proactive measures, such as a harassment policy, in place and when a complaint does occur, they fail to follow proper investigation procedures.

Second, either out of hyper-vigilance or emotional upset, they are quick to assume that any act of sexual harassment, however minor, always warrants the perpetrator to be terminated for cause.

A recent appellate level decision from British Columbia is a cautionary tale against both.

Song Hwan Cho, a 60-year-old head baker at Café La Foret Ltd., was summarily dismissed after he inappropriately touched the lower back, shoulder and buttocks of a 30-year-old assistant baker. The contact was a brief tap and an open-handed touch, which lasted 1-2 seconds.

Cho had a spotless disciplinary record over his 31-month tenure. He had never engaged in harassing behaviour in the past, nor in any other misconduct.

When management confronted Cho, he immediately admitted his mistake and asked whether he should apologize to the colleague or quit his job.

Cho was sent home so that the employer could investigate, however, at no point was he given opportunity to respond to all of the allegations put before him. The employer did not have a sexual harassment policy at the time that spelled out the investigation procedure or Cho’s right to respond, nor the clear consequences of engaging in harassing behaviour.

To his surprise, six days later, the bakery sent Cho a letter for him to sign apologizing to the colleague, prepared in the form of an affidavit. The affidavit contained factual inaccuracies and painted Cho as a dangerous sexual offender from whom all female staff must be protected. This was especially concerning given that the colleague made it clear to the company’s management that she intended to seek criminal remedies against the baker for having touched her. She wished to have a signed document from him confirming his admission of misconduct from which he could not later resile.

Another issue with the affidavit was that it made it impossible for Cho to comply with its terms while continuing to work for the employer. The affidavit prohibited Cho from contacting the colleague or any “current, former or future female staff” of the employer for any reason.

Cho refused to sign the affidavit. He was terminated for cause shortly thereafter. Cho sued his employer for wrongful dismissal and other extraordinary damages.
To establish just cause, employers must prove that the employee’s misconduct gave rise to a breakdown in the employment relationship. This is not an easy feat. Courts encourage employers to give employees written warnings, suspensions, and other types of discipline, before handing down the “capital punishment of employment law.”

Although the lower court found that Cho harassed the colleague, abused his authority, and caused the woman emotional distress, neither the actions he took nor his refusal to sign the affidavit amounted to cause.

In addition to the moderate severity of the misconduct, the court also noted the employer’s failure to implement a sexual harassment policy or to allow Cho to respond to the allegations against him as factors weighing against a finding of just cause.

Cho was awarded five months of notice.

Additionally, the court found that the employer acted in a “wholly inappropriate” manner in asking Cho to sign the affidavit, effectively forcing him to choose between incriminating himself and facing possible criminal charges or keeping his job. The court awarded $25,000 in aggravated and punitive damages for the manner of the termination.

The employer appealed and in a fresh decision rendered last Friday, the Court of Appeal upheld the lower court’s decision in its entirety, except for a technical change it made to characterize the extraordinary damage award.

Here are a few ways in which employers can prevent a similar outcome:

• Have a sexual harassment policy in place that clearly outlines what behaviour is unacceptable and the consequences for engaging in it;
• Conduct a fair investigation into the harassment allegations, which allows the harasser to respond to the allegations against them;
• Implement progressive discipline for less serious infractions;
• Seek legal advice before imposing any sanction on an employee for inappropriate conduct; and
• Refrain from firing employees for failing to sign affidavits or other legal statements.