NANAIMO — The City of Nanaimo faces a hefty bill after the B.C. Human Rights Tribunal ruled the City dismissed a former employee due to, likely unconscious, racial bias.
Victor Mema, the City’s former chief financial officer, was awarded $643,563.44 by the tribunal earlier this month. Mema ultimately could receive more money as interest will apply to the amount until it is paid in full.
Mema, of Zimbabwean descent, was suspended by the City in April 2018 and subsequently dismissed from his role after reports of serious misconduct were made surrounding his use of a City-issued credit card for personal purchases.
The tribunal’s Emily Ohler found while Mema “certainly made poor decisions regarding his use of the [City-owned credit card], understandably raising concerns, the City’s decisions to suspend and terminate his employment were discriminatory.”
Victor Mema’s history with the City
Mema was terminated from the City in spring 2018 after lengthy and repeated use of the card, documented by a misconduct report filed against him by finance department staff.
The tribunal heard Mema racked up nearly $15,000 in personal purchases beginning in March 2016, including a substantial charge to Mexican resort, which Mema argued was made in error.
While he made personal charges to the card intended only for City related expenses, he understood it was somewhat common practice among cardholders provided the amount was repaid.
Mema had repeated issues repaying the money, including a bounced cheque and ultimately insufficient payroll deductions.
Prior credit issues, including a lawsuit from the District of Sechelt and personal creditors calling him at City Hall, were also discovered by City staff.
In his arguments, Mema argued the misconduct report “compiled and linked a number of unrelated issues in a way that cast a shadow of suspicion on him.”
He said the document was “informed by racial stereotypes, and the City’s reliance on it to suspend and terminate his employment without investigation was discriminatory.”
The City denied Mema’s allegations, pointing to what they deemed to be misconduct which “constituted a failure by him as a fiduciary.”
Ohler heard the City had other concerns around Mema’s job performance, including “his improper approval of the payment of legal invoices for the City’s Chief Administrative Officer, and “his role in the hiring of two individuals into senior management positions who had no management experience.”
No formal investigation was conducted by the City following the misconduct report, as documented issues with his City-owned credit card were deemed sufficient for termination.
Judgement and reasoning
Ohler ultimately sided with Mema, saying he made “poor decisions” with his credit card, but “the City’s decisions to suspend and terminate his employment were discriminatory.”
She found the misconduct report “inflected with racial bias and stereotype – likely unconscious – which ran through each of the key points of the report.”
While Ohler admitted finance staff, who submitted the report, were acting in the City’s best interests, the report itself contained “a distinct underlying thread of racial bias.”
“…that I am satisfied was more likely than not informed by the pernicious stereotypes…of Black men as less honest or trustworthy.”
Ohler justified her findings through the timing of the report, months after Mema’s card was cancelled and the balance repaid, along with subsequent investigative steps on rules around card use overall.
She also said two members of the finance team who testified said “they wanted to see consequences for Mr. Mema, though they acknowledged they would not have been privy to any discipline he was subject to.”
Ohler also found the report, which included minor details of a reprimand from then-CAO Tracy Samra, implied a cover-up of Mema’s actions.
“Once again, this harkens to the stereotype of Black men as dishonest, implicating Mr. Mema as being somehow at work behind the scenes of the actions of Ms. Samra in which he was not directly involved.”
The hearing and next steps
Ohler presided over the matter for 19 days and heard from a total of 13 witnesses called by both sides.
Through her ruling, the City of Nanaimo was found in contravention of section 13 of the Human Rights Code.
Mema was awarded $50,000 for injury to dignity, feelings and self-respect after initially seeking $75,000. He also won $583,413.40 in lost wages and $10,150.04 in expenses as a result of this issue.
In a statement Tuesday afternoon, Mayor Leonard Krog said the decision was “not what we expected” and the City did not agree with assertions made about its staff.
‘It is our view that individuals on staff who came forward to disclose information regarding serious matters did so in good faith with the best interests of Nanaimo’s citizens in mind,” Krog said.
The City is reviewing the lengthy decision and deciding on next steps.
According to the tribunal, the City has 14 days to ask for Ohler to reconsider her decision if they deem the process unfair.
The City can also opt to challenge the decision in court within 60 days, if they believe the process was unfair, the decision was “patently unreasonable” or they believe Ohler applied incorrect law.
The complete decision is available on the Tribunal’s website.
UPDATE: Aug. 16, 2023:
The City of Nanaimo released a statement on Aug. 16, 2023, which said they met in a special session on Aug 16 and voted to seek a judicial review of this decision.
After considering their available options since receiving the decision, they have decided it’s in the best interest of citizens, the City, and City staff to seek such a review, the release said.
The release said the City would not be making further comments on this case as long as it’s before the courts.
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