Kelowna restaurant hit with $25,000 judgment over sexual harassment allegations

Photo: Bouchons Bistro / Facebook

The BC Human Rights Tribunal recently awarded a former server at a Kelowna restaurant a $25,000 judgment from the restaurant over the alleged sexual harassment she received from her supervisor.

Tribunal member Kathleen Smith issued her decision on Jan. 12, finding the owner of Bouchons Bistro is liable for the repeated sexual harassment V.C. said she was subjected to over a year and a half by another employee of Bouchons – V.C.'s direct supervisor.

Castanet is not naming the victim of the alleged sexual harassment due to the sexual nature of the acts allegedly committed against her. The supervisor who was responsible for the alleged harassment was not named in the decision.

V.C worked as a server at Bouchons, a French bistro located on Sunset Drive, between 2011 and 2015 under previous ownership, and then returned to work there again from August 2017 until she was fired in March 2019.

Bouchons is owned by Gastronome Enterprises Ltd., which is owned by executive chef Stephane Facon.

The alleged harassment, which Gastronome conceded occurred, included the supervisor allegedly texting explicit graphic sexual videos and pornographic links to V.C., forced physical touching, repeated innuendo that V.C. perform sex acts with the supervisor, repeated comments about V.C.'s body and her sexual partners and the supervisor exposing his genitals to her while they were at work.

In his defence, Facon said they were unaware of the harassment allegations while V.C. worked there, and only learned of them from a letter from V.C.'s lawyer a month after she was fired.

V.C., a single mother who relied on her job at Bouchons as her main source of income, testified she hadn't brought up the harassment allegations to Facon as she didn't want to to be seen as a “troublemaker.”

“She also testified in detail about her fear of being blamed and not believed. She worried that reporting could make things worse for her at work or result in her getting fired,” the decision states. “In addition, [V.C.] testified that she did not feel comfortable approaching the Facons because they trusted the [supervisor], had a personal relationship with him, and had promoted him.”

Facon admitted during cross-examination that when he learned about the allegations, he called several current and former staff members and asked them what they knew about V.C.'s sexual history, and whether she had slept with the supervisor. He took no steps to ask V.C. how she had been impacted by the alleged harassment or if she required any support.

“These kinds of questions in a sexual harassment investigation perpetuate harmful gender myths and victim blaming,” Smith said in her ruling.

“[V.C.] experienced stress, anxiety, and humiliation knowing that Mr. Facon questioned others about her personal life with others.”

Ultimately, Smith ruled that an employer's lack of knowledge about allegations does not excuse them from liability of their employees' actions.

“In short, Gastronome is responsible for the discriminatory conduct of the [supervisor] which occurred in his role as an employee in the course of employment,” Smith ruled.

“I observe that Gastronome had no policy, complaint mechanism, or training in place regarding discrimination or sexual harassment at the relevant time.”

The supervisor resigned from Bouchons in early April 2019, before V.C. notified Facon about the harassment allegations.

While V.C. argued she had been fired as a result of the supervisor influencing Facon, the tribunal was unable to find that was the case based on the evidence.

Instead, Facon said he fired her due to her taking issue with the restaurant's tip-out structure, which required staff to bring their own cash “float” to cover their tip-out to kitchen staff, bartenders, bussers and hosts. On March 11, 2019, V.C. contacted the Employment Standards Branch about her issues with the tipping tip-out system, and subsequently sent a letter to Mr. Facon outlining why the cash float and tip out rules were illegal. Two days later, V.C. was fired.

Facon admitted he fired V.C. in retaliation for her letter about the restaurant's illegal tipping system.

Separately from the Tribunal decision, V.C. previously took the restaurant to an Employment Standards Branch hearing over the illegal practices, and was awarded an undisclosed amount of compensation.

Additionally, the tribunal decision states V.C. also settled out of court with the supervisor who had allegedly harassed her. The nature of the settlement, or any financial compensation involved, is unknown.

While V.C. had sought a finding of between $40,000 to $50,000 from the restaurant for “injury to her dignity, feelings, and self respect,” Smith ruled that a $25,000 judgment was appropriate.

“In my view, this captures the serious nature of the sexual harassment [V.C.]had to endure on an ongoing basis, including sexual touching and harassment by text message which is particularly insidious,” Smith ruled.

“It also captures the difficult context [V.C.] found herself in, where the Employee became her direct manager, had the ear of the employer, and she needed the job to support her family. It also reflects the significant impact including feelings of disgust, humiliation, physical illness, and exhaustion from the ongoing stress and anxiety.”