A BC judge has decided that a baker who was fired for sexual harassment will be awarded $40,600 for wrongful dismissal because the misconduct was “relatively minor.”

Song Hwan Cho worked at Café La Foret Ltd. in Burnaby as a head baker when he was let go from his role without notice in November 2020 after an employee claimed she was sexually harassed and bullied by him, according to BC Supreme Court documents.

The complainant, Nam Gyeong Lee, is described as Cho’s subordinate and worked alongside him in the kitchen, the ruling states.

The day the allegation of sexual harassment arose, the café shifted to a new work schedule. Only two people were asked to work at a time, to ensure COVID-19 public health orders were implemented.

Before her shift six-hour shift with Cho, Lee admitted she was worried about having to work alone with him because in the past, when she worked short shifts with him, Cho would touch her without her consent. 

After two other bakers finished their shift, Lee said Cho unpromptedly started to talk about a massage he had the day before. 

As he talked about his massage, he pointed to the areas in his body and may have also touched places he felt pain like in his neck, shoulder, and lower back.

Then, Lee says the baker touched her upper back, shoulders and neck area when he talked about the pain in his sacrum area. Allegedly he also put his hand on Lee’s right buttock and pressed it firmly twice with his hand. 

Lee testified that she was uncomfortable when Cho touched her and that she stepped away to hint she was not comfortable. 

She admitted she did not say anything directly “because she was worried he would take revenge by making her do some difficult tasks or stopping her from taking breaks to eat food, as he had done in the past.”

CCTV footage captured Cho touching Lee near her shoulder, tapped her left shoulder for about one second, and appears to show an open-handed touch on her upper back which lasts about one to two seconds. 

The CCTV does not show Lee stepping back “but does show her moving around the kitchen in a manner consistent with attempting to maintain some physical distance from Mr. Cho.”

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Lee stated that Cho kept touching her throughout the day. 

After he allegedly repeatedly touched her on her shoulders and buttock, Lee said she got angry and Cho stopped her from having her meal. 

“She asked him “why are you doing this to me” in a voice that was loud enough for others to hear,” the statement reads. “At this point, there were six people in the kitchen – herself, Mr. Cho, three cooking staff, and one dishwasher.”

CCTV surveillance shows some kind of altercation between the two around 5 pm however, Cho denies that he touched Lee’s buttock at any point, or that he touched her at all after the first time. 

Cho also denies preventing Lee from eating.

BC Supreme Court Justice Palbinder Kaur Shergill says Cho’s explanation about what happened around 5 pm is vague. 

When asked to elaborate after he said it was “an argument or some kind of trouble,” Cho added that Lee was upset she was assigned to work with a co-worker that she did not have a good relationship with. Cho did not explain who this co-worker was. 

This altercation prompted Lee to leave the kitchen. 

She said she went to the washroom, cried and sent two texts to a co-worker to tell him about the incidents.

She left work early that day.

Cho does not deny touching Lee without her consent but says the touching occurred on only one occasion that day and consisted of two light taps on her shoulder when he was talking about the massage. 

It took 10 days for Lee to file a complaint to police because “she was assured that Mr. Cho would provide a written apology. However, as the days went on, the apology was not forthcoming.”

Shergill says there is evidence that proved Cho touched Lee on November 9 on two separate occasions without her consent. 

However, the judge said there are concerns regarding the reliability of Lee’s evidence and her credibility. 

“Lee’s evidence about the details of what transpired between them was inconsistent, confusing, and often vague,” Shergill said. 

There is also concern about how Lee explained how Cho touched her. 

For example, in a text to her co-worker, she wrote that Cho had touched her on the shoulder and the back of her neck, and “tapped” her buttock.

There was a suggestion that there may be a langue barrier but Shergill said the evidence falls short of establishing that when Lee said “tap” she really meant to say “pressed firmly”.

“Despite my concerns about her credibility on other issues, Ms. Lee’s evidence on this point was compelling. I find that on this occasion, Mr. Cho lightly tapped Ms. Lee in the buttock area while discussing the pain in his low back. This touch was also brief, and although not observed on the CCTV, I am satisfied that the quality of the video would make it difficult to discern,” Shergill concluded. 

“However, I reject Ms. Lee’s testimony that this touch was in the form of firm pressure on her buttocks. Rather, I find that her earliest and most contemporaneous account as relayed in her text message to Mr. Yang at 5:23 pm on November 9, is the most accurate reflection of the nature of the touch that occurred on this second occasion. In that message, Ms. Lee stated that ‘Just a little while ago, he tapped my buttock complaining about the pain on his sacrum,'” the judge said.

Shergill said in their view Cho’s actions constituted harassment of Lee and he crossed the line when he proceeded to touch Lee while discussing the massage.

“Though the touching was brief, it was intentional, unwarranted, and non-consensual. It was a violation of Ms. Lee’s bodily integrity, and caused her emotional distress.”

However, the judge said they rejected Lee’s claim that Cho bullied her and prevented her from eating. 

The judge does admit Cho’s actions constituted as an abuse of his authority.

The employer says Cho was fired because of sexual harassment, dishonesty during the investigation of the allegations, and his unwillingness to apologize and show contrition or remorse.

But on these grounds, the judge found there was only proof Cho sexually harassed Lee by briefly touching her on her shoulder, upper back, and buttocks which was described as “relatively minor,” by the judge. 

“The contact lasted for only a second or two on each occasion, and reflected a gross error of judgment, rather than mal fide intentions.”

The judge ultimately decided there was not sufficient evidence to justify Cho’s termination.

Cho sought $52,000 in damages in lieu of ten months’ notice and $100,000 in punitive and aggravated damages for the manner of his termination.

Shergill awarded Cho $15,600 in damages in lieu of notice, $25,000 in aggravated and punitive damages and court costs.

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