Restaurant ordered to pay former server $25,000 for sexual harassment by another employee

A French fine dining restaurant in Kelowna has been ordered by a human rights tribunal to pay $25,000 to a former server after she was sexually harassed by another employee for years.

Valencia Curken, a former server at Bouchons Bistro, filed the complaint against Gastronome Enterprises Ltd., which owns the restaurant, for the sexual comments, gestures, and graphic text messages she received from the employee between August 2017 and March 2019.

In a decision published Jan. 12 by B.C.'s Human Rights Tribunal, the restaurant was found to be liable for the employee's conduct towards the victim under the Human Rights Code.

"In all the circumstances, I am satisfied that Gastronome breached s. 13 of the Code based on the discriminatory actions of the employee in the course of his employment, and its failure to ensure a workplace free from discrimination," stated tribunal member Kathleen Smith.

Section 13 of the Code relates to discrimination in employment including discrimination based on sex.

Evidence of sexual harassment uncontested

The owner and executive chef of Bouchons and Gastronome, Stephane Facon, had argued that the company could not be held liable for the employee's conduct because it did not know about the behaviour at the time.

Gastronome said once it became aware of the allegations, it tried to investigate them, and has since implemented a policy at Bouchons to address workplace harassment and prevent it from happening again.

According to the ruling, Curken, a single parent with 30 years of professional serving experience, testified that the harassment included sexual comments, propositions for sex, sexual gestures, jokes, and innuendo, sexually graphic and explicit text messages, including video content, forced physical contact, sexual touching, and exposure of genitals. 

Curken's evidence about the sexual harassment was uncontested by Gastronome and Facon.

Her original complaint to the tribunal was filed against the employee who harassed her as well as Gastronome, but she withdrew it after reaching a settlement with the employee. The tribunal decision did not include any information about the settlement between them. 

The employee quit his job at Bouchons in April 2019, a month after Curken was fired.

Smith has ordered Gastronome to pay $25,000 to Curken for the injury to her "dignity, feelings, and self-respect."

Allegation of discriminatory termination dismissed

In her complaint, Curken also alleged that the sexual harassment was a factor when she was fired in March 2019. She said she had confided in a co-worker just days before her employment was terminated.

However, the tribunal found no evidence that the co-worker disclosed the sexual harassment to either Facon or the employee responsible for it and dismissed the allegation.

Instead, Smith found evidence to supports Gastronome's argument that Facon terminated Curken's employment "based on what it perceived as concerns about her performance."

According to the decision, Curken and Facon clashed on the restaurant's tip out rule which required servers to bring a cash float between $70 and $210 each evening to pay out kitchen staff and other employees.

It said in the days preceding her termination, Curken had called the Employment Standards Branch (ESB) and discovered that the tip out policy was illegal. She then wrote a letter to Facon saying that according to the ESB, employees should never be expected to bring a cash float to work or pay tip outs in cash every shift, and money paid to the server for tips given by credit card should be paid in cash to the server every evening. 

The Human Rights Tribunal decision states that Curken filed a formal complaint under the Employment Standards Act and that both Curken and Gastronome agree that there was a separate hearing, and she was awarded compensation.

There is no public record of the Employment Standards Tribunal hearing or of the compensation that was awarded to Curken at that time.