Former City of Nanaimo CFO awarded more than $600K in discrimination case

Mema v. City of Nanaimo (No. 2)

In this human rights decision involving allegations of anti-Black racism, the B.C. Human Rights Tribunal (BCHRT) found that the City of Nanaimo’s suspension and subsequent termination of Victor Mema, the city’s former chief financial officer (CFO), were discriminatory.

As a result, Mema was awarded more than $600,000 for lost wages and additional damages.

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Facts of the case

• Mema begins working for the City of Nanaimo in 2015 — primarily as the city’s CFO.
• Between 2016 and 2017, Mema incurs a large number of personal purchases on his corporate credit card. He doesn’t repay them in a timely manner.
• Staff bring their concerns to management and Mema is disciplined. His corporate credit card is suspended and he is put on a repayment plan.
• Following the incident, the city orders an external audit to examine employee use of corporate credit cards over the previous 10 years. The audit finds that many workers had used corporate credit cards for personal use, but they usually repaid the balances quickly.
• In February 2018, city council decides to amend the policies and administration of corporate credit cards.
• Multiple employees aren’t satisfied with the changes and remain concerned that Mema poses a “larger financial risk to the city.”
• A staff member files a misconduct report against Mema with the city’s human resources (HR) department. The report is brought before city council.
• In April 2018, Mema is suspended and placed on administrative leave without pay pending an investigation into the allegations. Prior to his suspension, he wasn’t made aware of the misconduct report or the allegations.
• City council eventually decides to terminate Mema. The decision is based primarily on the allegations made in the misconduct report.

The tribunal’s decision

Since this matter involved allegations of anti-Black racism in a predominantly White workplace, there were a variety of factors that the BCHRT had to consider, including:

• Did the City of Nanaimo treat Mema the same as other CFOs would have been treated in this situation?
• Were his protected characteristics (i.e. race, ancestry, place of origin, colour, etc.) a factor in how he was treated by his employer?

While Mema made some bad decisions with the use of his corporate credit card, the tribunal ruled that his suspension and subsequent termination were discriminatory — breaching the province’s Human Rights Code.

The city was ordered to provide him more than $583,400 in lost wages and over $60,000 for additional damages.

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Likely unconscious bias

The BCHRT found it was more likely than not that Mema being a Black person from Zimbabwe was a factor in his suspension and subsequent termination.

The tribunal looked at the history of both conscious and unconscious anti-Black racism in Canada — noting that systematic anti-Black racism continues to be “a reality of Canadian Society.”

While the BCHRT concluded that any bias was likely unconscious, it still played a role in finding misconduct on Mema’s part — believing that he was less honest or trustworthy because he was a Black person.

Differential treatment

Mema argued that the city treated his personal use of the corporate credit card differently than other staff members.

In his testimony, he claimed that he had seen the statements of other employees while he was CFO — noting the practice of using the corporate credit cards for personal expenses was condoned (with reimbursement).

Mema added that city council was provided with a list of his personal expenses.

No differentiation was made between the ones that were allowed, and those that weren’t.  However, he claimed that a distinction was made for White staff members.

The City of Nanaimo maintained that race wasn’t a factor in Mema’s termination.

Key takeaways for employees

• The reasons for your termination can’t be discriminatory: It’s illegal for employees in B.C. to be discriminated against based on protected aspects under federal or provincial human rights legislation (i.e. age, race, gender, religion, etc.). If you are a non-unionized worker who has been fired or let go, and believe that the reasons were discriminatory, contact an experienced employment lawyer at Samfiru Tumarkin LLP.
• You have to look for a new job after being fired: Regardless if the reasons for your dismissal are discriminatory, non-unionized employees in B.C. must do their best to find comparable employment. This is known as your duty to mitigate. It can affect the amount of severance pay that you are ultimately owed.

Key takeaways for employers

• It takes time for human rights tribunals to process complaints: Mema v. City of Nanaimo (No. 2) is a reminder that awards for lost wages can quickly become significant. They are often made from the time of termination to the date of the hearing.
• DEI training is crucial: Unconscious beliefs or biases often form the basis for stereotyping. To address this issue, ensure that staff receive sufficient diversity, equity, and inclusion (DEI) training.
• Consult an employment lawyer before firing non-unionized workers: Employers in B.C. should always speak with an experienced employment lawyer at Samfiru Tumarkin LLP before terminating a non-unionized employee with or without cause. Since each employment matter is unique, a thorough review by our team will ensure laws aren’t being broken and that the employee’s rights have been taken into account.

Lost your job? Speak with an employment lawyer

If you are fired or let go for any reason, or believe that your human rights have been violated, contact the experienced employment law team at Samfiru Tumarkin LLP.

Our lawyers in B.C., Alberta, and Ontario, have helped tens of thousands of non-unionized individuals resolve their workplace issues.

We can review your situation, enforce your rights, and ensure that you receive the compensation you are legally entitled to.