Double Facepalm
Some cases are clear. Some defy understanding.
A senior employee puts his hands on a junior female employee, including touching her buttocks. It is clearly unwanted contact. He forces himself on her. It’s one more time in a long series of unwanted touching. The lady has had enough. She complains to the boss. There’s surveillance video proving it. The assaulter gets fired for cause, right?
Apparently, not.
When head baker Song Hwan Cho sexually assaulted a young woman at Café de Foret in 2020, they fired him. They offered to let him return if he would admit what happened and participate in some reconciliation steps. Cho refused. Then he sued the café for wrongful dismissal.
I know what you’re thinking: the judge whacked the assaulter upside the head. NOPE. Justice Palbinder Shergill determined that Cho had sexually assaulted the young woman. She determined that Cho had perjured himself when he denied it under oath – both before trial, and at trial. But she held that the employer firing Cho and wanting Cho to admit what he did was so outrageous, she ordered the café to pay Cho $40,000 in damages, plus court costs: https://canlii.ca/t/jrrj4. Incredibly, Justice Shergill rejected there was any significant power imbalance between Head Baker Cho and this young lady:
[143] (b) … However, the fact that Ms. Lee did report Mr. Cho to a manager very shortly after the non-consensual touching of November 9 occurred, suggests that the power imbalance between them was not overly prohibitive.
The café appealed. I know what you’re thinking: The Court of Appeal overturned this ridiculous decision and held the café was right to fire Cho. NOPE.
The Court of Appeal corrected some minor technical legal analysis, but left the main judgment alone: https://canlii.ca/t/k03cl. Cho got to keep the money. PLUS, he got court costs for the appeal.
Neither court seemed to care at all that Cho had repeatedly harassed and sexually assaulted this young woman. Neither seemed to care that the café was trying to keep its employees safe from sexual assault.
It seems both courts focused only on the cafe trying to get Cho to admit in writing what the surveillance video proved. Somehow that was a step too far.
Wrongful dismissal has been a core area of my practice since 1990. I have no words for what happened here.
The only clear result is: Song Hwan Cho doesn’t work for Café de Foret anymore. I wonder if he’s working somewhere else, victimizing other women. Let’s hope not.
