Court finds Sexual Harassment Insufficient to Justify termination

In Cho v Café La Foret Ltd., 2022 BCSC 1560 the Court found that an employee (Mr. Cho) did sexually harass a subordinate (Ms. Lee), but that his conduct was not severe enough to warrant termination. Not only did the Court award Mr. Cho 5 months’ pay in lieu of notice for wrongful dismissal, but they also awarded him $25,000 in punitive damages for the Employer’s bad faith conduct in the manner of his dismissal. 

Just Cause Terminations and Sexual Harassment 

Employers may terminate an employee for cause without giving them notice of their termination or payment in lieu. To justify terminating an employee for cause, the employee’s misconduct must be serious, willful, and represent a fundamental breakdown of the employment relationship. Courts have often described terminations for cause as being the ‘capital punishment’ of employment law. 

While in most circumstances, employers must implement less severe disciplinary measures to address an employee’s bad behavior, in some cases one instance of employee misconduct will be grounds for immediate termination for cause. An example of such a case is where an employee sexually harasses others in the workplace. The Ontario Human Rights Code prohibits sexual harassment in the workplace. In addition, the Occupational Health and Safety Act obligates employers to post and enforce workplace policies in order to prevent sexual harassment and promote safe work environments. 

When assessing whether sexual harassment warrants dismissal for cause, Courts will consider the following:

• the degree and nature of the conduct amounting to sexual harassment; 
• the nature of the relationship between the offending employee and the victim employee; 
• whether the offending employee continued or repeated the unwelcome or offensive behaviour, after being told that the conduct was unwelcome;
• whether the employer warned the employee that the misconduct was inappropriate and that dismissal was a possible consequence of further similar misconduct;
• whether the employer had a formal, and known, sexual harassment policy, which was enforced by the employer;
• the nature of the employment relationship between the offending employee and the employer, including length of service and position, and whether there were implied or express terms of the employment contract which gave rise to additional obligations on the employer’s part, such as with respect to warnings or the opportunity to respond; and 
• whether the impugned conduct was condoned by the employer.

While sexual harassment is incredibly serious, the above mitigating factors can be taken into consideration when determining whether a sanction lesser than immediate termination is appropriate in the circumstances. 

The Decision 

In Cho v. Café Laforest ltd., the Court held that Mr. Cho’s actions did amount to sexual harassment. However, the Court found that the Employer did not have grounds to terminate him for cause. The court referenced a number of mitigating factors when coming to its conclusion. The Court found that the misconduct in question was “relatively minor” and that “It consisted of a brief light tap on Ms. Lee’s left shoulder, followed by a brief open hand pat to her upper back, and a subsequent light tap on Ms. Lee’s buttock”. The Court also considered the fact that Mr. Cho was not warned prior to the incident that such conduct was inappropriate, and that dismissal was a possible consequence of such misconduct.

The Court also considered the Employer’s conduct at the time of Mr. Cho’s dismissal.  When Ms. Lee reported Mr. Cho’s harassing behaviour, the Employer responded by commencing an investigation. The investigation did substantiate Ms. Lee’s claims. When confronted with these allegations, Mr. Cho admitted he had made a mistake, and asked whether he should apologize or quit his job. After the investigation, the Employer asked Mr. Cho to sign an affidavit in which he would admit to sexually harassing Ms. Lee, upon signing which, Mr. Cho would be permitted to return to work. Mr. Cho refused to sign this affidavit, as it contained factual inaccuracies and wording which characterized him as a sexual offender. Given the circumstances and the contents of the Affidavit, the Court found that it was reasonable for Mr. Cho to refuse to sign it. In addition, a condition for Mr. Cho to return to work was that he would not interact with Ms. Lee. The Court found that this request was contradictory as Mr. Cho would have to work with Ms. Lee if he was to return to his position. 

Issues Arising from the Decision 

The outcome of this decision, in our view, is an anomaly and is unique to the facts. Of significance in this decision was the fact that the employer, by its own admission offered to allow Mr. Cho back to work, which is inconsistent with the premise that the employee’s conduct was so bad, that it resulted in a breakdown of the employment relationship.   

The employer clearly mishandled the situation in this case. The employer’s actions in forcing Mr. Cho to sign an affidavit in which he admitted to wrongdoing was not the appropriate way to respond to the circumstances. Despite this, the fact remains that sexual harassment in the workplace, in all forms, is a serious issue which must be combated with an appropriate level of discipline. While in some cases it may be possible to discipline an employee for sexual harassment without terminating them, in the case of smaller businesses, it may not be possible to do so, as employees may need to continue to work closely with one another. While employers must ensure they go through the proper steps when disciplining an employee for sexual harassing behaviour, they have a corresponding duty to the employee who has been a victim of such behavior. 

Takeaway for Employers and Employees 

Sexual harassment in the workplace is considered highly serious misconduct and can be grounds for immediate dismissal. Employers must be cautious to ensure they follow the proper process when disciplining or terminating an employee for such conduct. If you are an employee, be aware that your employer has a legal duty to create and update workplace policies to ensure that sexual harassment is discouraged, and disciplined. Speak to an employment lawyer if you are experiencing sexual harassment in the workplace to ensure you are aware of your legal rights.