New Westminster's courthouse. (Dustin Godfrey / Burnaby Beacon)

La Foret fired its head baker for sexual harassment. Now the cafe is paying for it

Cafe La Foret is considering appealing a court decision that found sexual harassment was not enough to fire its former head baker.

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September 21, 2022 | 5:00 am

Editor’s note: Note: The article has been edited to protect the identities of the parties involved.

Burnaby’s Cafe La Foret has been ordered to pay its former head baker $25,000 plus costs after he filed a wrongful dismissal complaint against the bakery.

But the cafe disagrees with the court ruling and is considering appealing the matter to a higher court, arguing it proved its allegations of sexual harassment and that the head baker acknowledged his actions were inappropriate. The cafe also said in an email that the judge herself had raised concerns about the head baker’s credibility in his testimony to the court, and “in spite of all of this and other factors, the court did not find just cause for the dismissal.”

“La Foret takes safety and health of all of our employees very seriously and will not tolerate sexual and other harassment, especially this kind of egregious conduct, in our working environment,” the cafe’s owners wrote.

Song Hwan Cho, 62, was the head baker at La Foret until he was fired without notice in November 2020 over allegations of sexual harassment and bullying of another employee.

In his civil claim against La Foret, Cho denied those allegations, brought forward by his subordinate, and sought $52,000 in lieu of 10 months’ notice and $100,000 in damages “for the manner of his termination,” according to a BC Supreme Court decision.

Three areas of misconduct alleged

Cho worked as head baker at the cafe for a year in 2017-18, and again for a year and eight months prior to his Nov. 9, 2020 dismissal. He worked at Inno Bakery between those two stints at La Foret and was reportedly enticed back with an offer of an increased salary.

The employee worked with Cho throughout his second stint at La Foret, reporting directly to him in the bakery area of the kitchen.

La Foret put forward three points of misconduct on Cho’s part as just cause for his dismissal, including sexually harassing a female subordinate, “taking advantage of the power imbalance between him and that employee,” abusing his authority, and continuing “to be dishonest about the highly inappropriate and improper behaviour in which he engaged.”

“He refused to participate in the necessary reconciliatory efforts with [the employee] and his employer and has shown a lack of contrition, remorse, and insight into his misconduct throughout,” Justice Palbinder Kaur Shergill wrote of the cafe’s position.

Cho, however, admitted to touching his subordinate on the back of her neck and her shoulder but denied that the touching was sexual.

And he argued that the response by management was not proportionate to the allegations, noting that he was “never told that the impugned conduct was unwelcome or offensive.” Notably, the cafe didn’t have a formal sexual harassment policy.

After he was told that the conduct was unwelcome, Cho said he didn’t repeat the behaviour “and instead offered to apologize to [the employee] or to quit.”

Worker expressed discomfort working with Cho

On Nov. 9, 2020, the two were scheduled to work together from noon to 6pm, the ruling noted, and the employee testified that she had been worried about working alone with him.

“In previous shifts, they would work alone together for about 1-2 hours. On those earlier occasions, Mr. Cho would touch her without her consent. She was concerned about what would happen if they had to work a full six-hour shift together,” reads the ruling.

A baker on the morning shift testified that the employee had, in fact, expressed discomfort to him about working alone with Cho but didn’t say why.

And the employee testified that as soon as the two morning shift bakery workers finished work, Cho began talking about a massage he’d received the day before.

While describing the pain he’d experienced in his neck, shoulder, and lower back throughout the day, the employee testified that Cho had repeatedly touched her in those areas.

She said she was visibly uncomfortable with the touching, and Shergill noted that this was evident from CCTV footage.

The employee didn’t verbally communicate her discomfort, she testified, because she was worried Cho would retaliate by making her do difficult tasks or stopping her from taking her breaks, “as he had done in the past.”

And on that day, according to the employee, Cho did prevent her from taking any breaks, something that upset her.

Shergill questions the employee’s credibility

After 5pm, the worker said she complained to the front counter manager about Cho touching her, and when she returned to her position, he continued touching her, including on her right buttock.

She testified that she eventually got angry at Cho, asking him, loudly enough for others to hear, “Why are you doing this to me?”

She left half an hour early that day and, while she worked for a week after the incident, after she was told Cho would not be at work, she ultimately landed in hospital due to stress and had to take some time off.

Shergill questioned the employee’s credibility, saying she gave varying accounts of how Cho touched her, including at one point saying in a text message that he “tapped” her buttock, while at another point saying he “pressed her hip twice firmly.” The defence argued that in Korean, the word “tap” is different than in English, but Shergill found that fell short of explaining her wording.

Shergill also noted that the worker’s testimony was “inconsistent” when it came to the time that Cho tucked her buttocks, wavering between 5:04pm and 5:18pm, as different evidence was shown.

“It was evident … that [the employee] was catering her testimony to conform with the exhibits, rather than recounting her independent memory of the incident,” Shergill said.

Cho denies allegations

Cho, on the other hand, testified that he did touch her without her consent but said it only happened once that day, around noon, and was only two light taps on her shoulder.

He also testified that the worker didn’t react negatively when he touched her and continued working alongside him.

He also denied telling her not to eat or go for her meal.

Cho originally denied touching her at all but then admitted to tapping her when lawyers played CCTV footage of it, according to the ruling.

And Shergill said he was “vague” when asked about what happened after 5pm when she got angry with him, saying there was “an argument or some kind of trouble.”

He said she was upset about being assigned to work with a coworker she didn’t get along with but didn’t explain who the coworker was.

Shergill ultimately determined that Cho had touched the employee on her buttock but that it was a tap rather than a firm gesture, something she described as, though brief, “intentional, unwarranted, and non-consensual” and a “violation of [her] bodily integrity and caused her emotional distress.”

But Shergill found he was not ultimately fired for his misconduct, but for refusing to sign an affidavit related to the incident.

Was the firing justified?

She said Cho did demonstrate remorse for the incident—despite claims to the contrary by La Foret—including offering to apologize in-person, and that he was not dishonest or uncooperative with management.

Having found Cho committed one of the three charges of misconduct—the sexual harassment—Shergill determined that his actions did not justify termination.

She added that Cho’s refusal to sign the affidavit—submitted to him as an apology letter to the employee—was still not enough to justify firing him. She accepted that Cho didn’t sign it “because he could not agree with the statements made in it, including wording that made him out to be a sexual offender.”

And she said forcing Cho to sign the affidavit “effectively forced him to choose between incriminating himself and facing possible criminal charges as a result, or keeping his job.”

“Here, the employer was highly blameworthy by putting Mr. Cho in a position where it knew that he would risk criminal proceedings if he signed the affidavit,” Shergill wrote.

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Dustin Godfrey

Reporter at Burnaby Beacon

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