Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel (on leave) Acting Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2016 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 12 YOU MAKE THE CALL Was Chen wrongfully dismissed? OR Did Moxie's have just cause for dismissal? Restaurant employee served with dismissal after harassment accusation THIS INSTALMENT of You Make the Call involves a restaurant bar manager who was fi red for harassing a server. Richard Chen was a bar manager for Moxie's restaurant in Richmond, B.C., for four months. His short period of employ- ment ended when a server at the restaurant told the manager that she was standing in the passageway behind the bar waiting for a drink order when Chen walked behind her and touched her buttocks. She immediately swung around to face him and said, "You touched my butt." According to the server, Chen didn't apologize or say anything to her at all. e server provided a written statement saying Chen "felt a tap against" her buttocks and Chen "touched" her, and when she asked him if he did it, Chen replied "yeah." She then strongly told him not to touch her again. e restaurant manager didn't discuss the server's complaint with Chen as the server had worked at the restaurant for three years without making a complaint and Chen had only been there for four months, so she ac- cepted the server's account of the incident. In addition, the manager knew the passage- way was comfortably wide enough for two people to pass by without touching. e manager sent out a performance evaluation form about Chen to 130 Moxie's employees. About 30 employees responded and they were mostly negative about Chen's general competence, but none reported any inappropriate sexual misconduct. Once the responses came in, the manager decided there were two reasons for dismiss- ing Chen — inappropriately touching the server and poor performance. Company pol- icy — of which Chen had been made aware when he began his employment with Moxie's —dictated that serious violations "can and often do lead to immediate termination for just cause" and identifi ed "acting in a way that discriminates, embarrasses, humiliates, an- noys, alarms or verbally abuses a person and that is known or would be expected to be un- welcome (harassment)" as a serious violation, including "words, gestures, intimidation, bul- lying or other inappropriate activities." As a result, Chen's employment was ter- minated. When Chen applied for a job at another restaurant in Richmond and was refused, he found out that Moxie's had fi red him be- cause he had inappropriately touched one of the servers. He didn't feel that was what had actually happened. According to Chen, he was walking along the passageway be- hind the bar with an empty serving tray. He held the tray in one hand while he edged by the server, and he said the tray accidentally bumped the server's buttocks. He didn't be- lieve he touched the server at all with his hand or intentionally touched her with the tray. It was a narrow passageway and he couldn't completely avoid her. Chen launched a small claims action for wrongful dismissal. IF YOU SAID Chen was wrongfully dis- missed, you're right. e court noted that if there are two reasons for an employee's dismissal, only one of them has to be based upon just cause for the dismissal to be up- held. is was important as the reason of poor performance couldn't stand as just cause because Chen wasn't given a warning or opportunity to improve, which are usu- ally required fi rst before poor performance can warrant just cause for dismissal. As for Chen's alleged harassment, the court noted the restaurant manager didn't interview Chen regarding the accusation against him, so he didn't have a chance to give his side of the story. is was important since the server's account referred to the physical contact fi rst as a "tap" and then as a "touch." is compared favourably to Chen's version that the tray he was carrying hit her buttocks and bumped her, lending credence to his claim it was unintentional, said the court. In addition, the server didn't see ex- actly what had happened since she was fac- ing away from Chen. e court also noted that no employees who responded to the evaluation form re- ported any sexual misbehavior by Chen and no indication of any towards that particular server before the incident. e court found there was enough doubt over the circumstances that Moxie's couldn't prove misconduct on a balance of probabili- ties. As a result, the restaurant didn't have just cause for dismissal. Moxie's was ordered to pay an appropriate amount of damages in lieu of notice and left the two sides to try to negotiate that amount. For more information see: • Chen v. Moxie's Restaurants Management, Inc., 2016 CarswellBC 1632 (B.C. Prov. Ct.).

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