Chen v. Moxie’s Restaurants Management Inc. Date:, 2016 BCPC 169

Citation: Chen v. Moxie’s Restaurants Management Inc. Date: 20160513 2016 BCPC 0169 File No: 26307 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: RICHARD CHEN CLAIMANT AND: MOXIE'S RESTAURANTS MANAGEMENT, INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.R. MEYERS Appearing in person: R. Chen Counsel for the Defendant: P. McLean Place of Hearing: Richmond , B.C.

Dates of Hearing: November 20, 2015, March 3, 2016 Date of Judgment: May 13, 2016 [ 1 ] The Claimant, Mr. Richard Chen (“Mr. Chen”) was an employee of the Defendant, Moxie’s Restaurants and Management Inc. (“Moxie’s”) for approximately 4 months until the incident which resulted in his dismissal occurred. [ 2 ] Mr. Chen was one of the Bar Managers at Moxie’s Restaurant in Richmond, BC. [ 3 ] Mr.

Chen was dismissed when one of the female bar servers (“the Server”) complained to the Manager that he had “touched her butt”. [ 4 ] The Server told the Manager and the Court that this happened when she was standing in the passageway behind the bar and waiting to pick up her drink order. She said that Mr. Chen walked behind her and touched her buttocks. She said that she immediately swung around and said to him, “You touched my butt”. Mr. Chen did not say anything and did not apologize according to her. Mr. Chen disagreed and said that he did apologize. [ 5 ] Mr.

Chen was summarily dismissed without the Manager talking him to hear his side of the story. The Manager did not tell him the reason for his dismissal. [ 6 ] However, before the Manager dismissed him, she sent out a Performance Evaluation Form to 130 of the Moxie employees. Only about 30 employees replied and most of them were negative in so far as his general competence was concerned. However, none of them reported any inappropriate sexual misconduct by him. [ 7 ] It was not until after the negative reviews came in, that she actually dismissed Mr.

Chen. [ 8 ] In her testimony, the Manager said that there were actually two reasons for dismissing Mr. Chen. The first reason was the touching of the Server and the second reason was his poor performance evaluations. [ 9 ] The Manager agreed that what was really behind her request for employee feedback (the Performance Evaluation) was to see whether or not there might be any other employee complaints concerning inappropriate sexual conduct by Mr. Chen. [ 10 ] Mr. Chen attempted to get other jobs in the restaurant industry but was unsuccessful.

He suspected that the reason why he was having difficulty was due to the negative reference he was getting from Moxie’s. [ 11 ] It was not until he applied for a job at a restaurant in Richmond and was refused that he found out the reason that he had been dismissed from Moxie’s. One of the servers at the new restaurant had previously worked at Moxie’s and she told him that the reason he had been fired was because he had inappropriately touched one of the servers. This was the first time that he was told the reason that he had been dismissed from Moxie’s. [ 12 ] Mr.

Chen then brought this Small Claims Action against Moxie’s, claiming that he was wrongfully that is, without just cause, dismissed from his job. [ 13 ] The Server testified at the Trial and basically reiterated her original written complaint to the Manager. See paragraph 3. [ 14 ] Mr. Chen testified that the incident occurred as follows: he was walking along the passageway behind the bar while carrying an empty rubber serving tray. He was holding the serving tray in his right hand and the tray was positioned downwards, parallel to his leg.

When he walked by and behind the Server, the side of the tray accidentally bumped her buttocks. He said that he never touched her with his hand nor did he intentionally touch her with the serving tray. He insisted that it was an accident which occurred in a relatively narrow passageway. [ 15 ] The evidence was that the passageway was comfortably wide enough for two people to pass by one another without touching each other. [ 16 ] The Manager testified that Mr. Chen had worked at Moxie’s for only 4 months whereas the Server had worked there for 3 years.

She explained that prior to this incident the Server had never made any complaints. She chose to completely believe the Server and did not even interview Mr. Chen to give him an opportunity to provide his side of the story. [ 17 ] Moxie’s had a printed document entitled “Company Policy Violations” which had to be signed and initialled by each new employee. When Mr.

Chen was hired, he signed and initialled that document. [ 18 ] The opening paragraph of the Company Policy Violations document was as follows: “The following actions are considered extremely serious violations of the Company Policy and violations can and often do lead to immediate termination for just cause or disciplinary suspension without pay. It is understood that it is within the Company’s sole discretion to decide on the appropriate penalty should the Undersigned violate the Companies Policies and Procedures.

Such penalties may include, but are not limited to, suspension without pay or immediate termination. Please note that this list is not exhaustive. All personnel are responsible to follow all of the Companies Policies and Procedures as may be amended from time to time.” [ 19 ] One Paragraph of the Company Policy Violations stated as follows:

“Acting in a way that demeans, discriminates, embarrasses, humiliates, annoys, alarms or verbally abuses a person and that is known orwould be expected to be unwelcome [harassment]. This includes words, gestures, intimidation, bullying or other inappropriateactivities”; [20] The Management justified their dismissal of Mr. Chen based on the allegations of the Server which allegations would constitutea violation of the Company Policy Violations and Mr.

Chen would have been aware of them when he began his employment withMoxie’s. [21] At first blush, one would think that in fairness, a Manager should be obliged to meet with the employee to give him or her achance to explain their version of the events and that it would be unfair for a Manager to fire the employee without first giving them afair opportunity to meet the allegations and give their side of the story. However, the case law does not support this view.

The case lawprovides that if an employer has a policy that warns an employee that should they breach that policy and the employee has agreed to thatpolicy, the employee can be subject to an immediate dismissal at the sole discretion of the employer and there is no requirement that theemployee must be interviewed prior to their dismissal. [22] The cases setting out this state of the law are: Leach v. Canadian Blood Services 2001 ABQB 54 , [2001] A.J. No. 119 (Alberta Court of Appeal); Gonsalves v. Catholic Church Extension Society (1998) (ON CA), 164 DLR (4th) 339(Ont. C.A.); Tellier v.

Bank of Montreal (1987) 17 CCEL 1 (Ont. C.A.); Knight v. Indian Head School Division No. 19 (1990) (SCC), 69 DLR (4th) 489 (SCC) and Yeomans v. Simon Fraser University [1996] B.C.J. No. 956 (BCSC). [23] There was only one case that was cited where the court held that the employer had breached their duty of fairness to anemployee when they carried out a very cursory investigation before firing him.

However, the Decision in that case focused on the factthat the Employment Contract specifically required that the employer was required to conduct a “full and fair investigation” prior todismissing an employee and that implicitly required the employer to interview the employee to hear “his side of the story”. In our case,the Employment Contract between Moxie’s and Mr.

Chen did not contain such a term. [24] In addition, at first blush, one would think that in fairness, if an employer had two reasons for dismissing an employee, if eitherone of those reasons did not constitute just cause, then the whole dismissal should be ruled to be a dismissal for unjust cause. In thisparticular case, the Manager testified that she had two reasons for dismissing Mr. Chen. One reason was his violation of the CompanyPolicy Violations and the second reason was his poor job performance.

In any case involving a dismissal due to poor job performance,the employer is obliged to conduct a warning interview with the employee, set out the particulars of their poor performance, outlineexpectations for their future improvement, arrange for specific training, set a deadline for the next review and outline the consequencesif they fail to improve by the deadline.

Obviously, in this Case that procedure was not followed. [25] However, the case law does not support the proposition that if there are two reasons for an employee’s dismissal, then both ofthe reasons have to be based upon just cause or else the entire dismissal will be ruled to be unjust. Instead, the case law provides that ifan employer has just cause for only one of the reasons for dismissal that will be sufficient to establish just cause for the employee’sdismissal, even if the other reason was for an unjust cause. See the following cases: Houlihan v.

McEvoy [2002] BCSC 16; Carr v.Fama Holdings Ltd. (BC CA), [1989] B.C.J. No. 1888 at page 34; and Smith v. Finning Tractor and Equipment Co.[1987] B.C.J. No. 183 (BCSC). [26] Having said all that, where does it take us? [27] It is up to the Court to decide whether Moxie’s have met their onus and their burden to prove, on the balance of probabilities,that Mr. Chen intentionally touched the Server’s buttocks with his hand and thereby violated the Company Policy Violations, andtherefore justified his dismissal. [28] In order to answer this question, it is important to study the testimony given under oath by Mr.

Chen and the Server. It is alsoimportant to study the letter of complaint which the Server wrote to her Manager. [29] The Server was not interviewed by the Manager, in person, so there were no oral statements available for review by the Court. Mr. Chen was not given an opportunity to respond to the Manager, either orally or in writing, so it is only his courtroom testimony thatthe Court has available to consider. [30] In her written statement to the Manager, the Server used the words, “I felt a tap against my bum”; she wrote that sheimmediately turned around and said to Mr.

Chen, “Did you just touch my ass?” and that Mr. Chen replied, “Yeah”; she then said, “Don’tfucking touch me!” [31] The important words which she used in her complaint letter were that she “felt a tap against her bum” and that” he touched myass.” [32] When the Server testified during her examination in chief, she twice used the word “touch” when describing the encounter butin cross-examination she specifically said, “It was not a touch. It was a tap”. [33] Was it a “touch” or was it a “tap”?

The Server used both terms when describing the contact. [34] At no time did the Server describe the contact as a squeeze, a slap or a grab and she withdrew her use of the word, ”touch”during her cross-examination. She specifically replaced the word, “touch” with the word, “tap”. [35] The Server corrected herself in cross-examination. She specifically abandoned her use of the term “touch” and replaced it withthe term, “tap”.

[ 36 ] When Mr. Chen testified, the terms which he used to describe the contact with the Server were: “ The tray hit her bum and it bumped her”. [ 37 ] The burden and onus is on Moxie’s, to prove on the balance of probabilities that Mr. Chen intentionally touched the Server’s buttocks with his hand.

Moxie’s does not have to prove beyond a reasonable doubt that he did so but nonetheless they do have to prove on the balance of probabilities that he did. [ 38 ] When I consider the words used by the Server in both her written letter of complaint and then in her oral testimony, in my mind, her evidence is equally consistent with her having been bumped, tapped or hit with the tray, as it is with her being touched by Mr. Chen’s hand. [ 39 ] When the Server was tapped from behind, she didn’t see exactly how the incident happened; she did not recall one way or the other if Mr.

Chen had a tray in his hand at the time; and the words and terms which she used, were equally consistent with Mr. Chen inadvertently bumping, tapping or hitting her with the tray as they are with Mr. Chen having intentionally touched her buttocks with his hand. [ 40 ] In addition to this, there had never been a suggestion of any previous inappropriate sexual conduct in words or gestures by Mr. Chen towards the Server. [ 41 ] It should also be remembered that the Manager sent out a performance evaluation to approximately 130 of the Moxie employees.

Only 30 of them replied and none of them reported any sexual misbehavior by Mr. Chen. Only one person had reported that Mr. Chen tended to flirt with the bar staff. [ 42 ] None of this is to say that the Server was deliberately lying in her allegations. I would think that she may have been honestly mistaken as to what actually happened. [ 43 ] Accordingly, I find that Moxie’s has not proved, on the balance of probabilities that Mr. Chen was guilty of sexually inappropriate conduct towards the Server, that is to say, they failed to prove on the balance of probabilities that Mr.

Chen touched the Server with his hand. [ 44 ] As I mentioned before, had there been at least an opportunity for Mr. Chen to give his side of the story to the Manager and had the Manager conducted an in person interview with the Server, things may have turned out differently. Effectively, the Manager said that she had worked with the Server for 3 years, Mr. Chen had only been there for 4 months and she totally accepted the Server’s statement without any need of further investigation. She accepted the accuracy and reliability of what the Server said without bothering to ask Mr. Chen for his version of the incident.

That was unfortunate. It may and I emphasize “may” have changed the Manager’s position and maybe Mr. Chen would not have been terminated immediately. [ 45 ] The Court is the final place for an employee who believes that they were dismissed without just cause to challenge their dismissal. [ 46 ] The common law does not require an employer to conduct a full investigation as to the validity of any accusation but the employer who does not conduct an investigation, risks that a Court may find that their dismissal of the employee was without just cause.

In this case, that is what I have found. [ 47 ] Insofar as the amount of pay in lieu of Notice which should be given to Mr. Chen, the Parties are to attempt to come to an agreement as to that amount within the next two weeks and if they cannot, they are to contact the Judicial Case Manager to set the matter down for a 45 minute Hearing for the Court to assess that amount. [ 48 ] Any reasonable costs incurred by Mr. Chen shall be paid for by Moxie’s.

If the Parties are unable to agree on those costs, the matter should be referred to the Registrar of the Small Claims Court for determination by the Registrar. ________________________ The Honourable P.R. Meyers Provincial Court Judge