Former Nanaimo CFO owed $640K due to racial bias informing firing decision

The BC Human Rights Tribunal has ruled that the former Chief Financial Officer for the City of Nanaimo is owed $643,563 because the misconduct report that led to his firing had a racial bias against him.

Victor Mema was suspended with pay by the city in March 2018, then fired two months later, for using his city credit card for personal purchases.

In the 106-page ruling, Emily Ohler, the BCHRT tribunal member, writes that Mema had been making personal purchases on the city credit card and had always promptly been repaying the amount. In the summer of 2016, Mema’s mother and wife became ill, and Mema began to have trouble repaying the balance.

The issue of non-repayment was first raised to Mema in September 2016, then on three other occasions in the following months. The city then set up a payroll deduction plan to repay the outstanding amount, however, he continued to charge personal expenses to the credit card amounting to $14,148.97.

One year later, on October 6, 2017, the issue was raised to the city’s Chief Administrative Officer, Tracy Samra. She met with Mema and followed up with a letter and at this time Mema’s credit card was revoked and destroyed.

Mema says prior to this he had not been told to stop using his city credit card for personal expenses.

In January 2018, Nick Mloyi was hired on a two-month appointment as the interim deputy director. At the time, he was the second Black employee of the city, the first being Mema.

Mloyi testified that on his arrival, there was a rumour in the finance department that he was brought on to the city because he was “best friends” with Mema and that he was to cover up for Mema’s wrongdoings.

In January 2018, a news article was published detailing the issues of Mema’s use of the city’s credit card. Following this article, Councillor Bill Yoachim testified to the BCHRT that the union texted him in February “saying things like the Council should fire Mr. Mema, that Mr. Mema was a criminal, that staff are concerned and not happy with ‘those kinds of people’ being hired.”

Yoachim says he read the texts in an in camera council meeting about Mema, saying he was concerned with the undertones, specifically referring to Mema as “those kinds.”

“Councillor Yoachim said that after he read the text, it was business as usual,” the ruling says. “In his testimony, Councillor Yoachim expressed concerns over the lack of interest in changing institutionalized racism at the City, and described a lack of ‘minorities’, which I take to refer to visibly racialized people, employed by the City.”

On February 23, 2018, Jamie Slater, an employee in the city’s accounting department, emailed HR a Misconduct Report on the issue.

In the report, Slater alleged that Mema was aware of the agreement prohibiting personal use of the credit card, that repeated attempts were made to have the amount repaid, and that he and Samra were using “management override capabilities” to authorize payments.

The HR employee who received the report says the city’s procedure for receiving a serious conduct report was to take it to senior management, but since the complaint was against Mema, who is a member of senior management, he decided to take it directly to council instead.

In 2017, the city hired KPMG to look into the city’s credit card policies and the KPMG report was finalized around the same time that the misconduct report was filed.

The KPMG report said that the city does have a policy against personal use, but the city had an elected practice to allow personal expenses with a practice for ensuring repayment. The report recommended clarifying the credit card agreement and changing the personal expenses practice.

The report also noted that Mema was not the only employee using the city credit cards in this way.

On March 1, the updated policy was finalized with Mema having plans to implement it, however, the same day council unanimously voted to immediately suspend him, though two councillors were not in attendance. Later on May 11, council unanimously voted to terminate his employment.

Mema argues that there was no investigation into the issue that led to his termination, but the city says the misconduct report and the KPMG report were investigations into the matter.

In making the ruling, Ohler wrote that stereotypes of Black men being less honest or trustworthy factored into the writing of the misconduct report, and the city relied on a discriminatory report to terminate Mema’s employment.

Ohler writes that she accepts that Slater believed she was acting in line with training and ethical principles in writing the misconduct report, however, she wrote the report in response to a belief that the city was not adequately disciplining Mema for the offence.

Slater testified that she wanted to see consequences for Mema, but she acknowledged that she would not have been informed of any discipline, due to her role.

The report also characterized the repayment plan Mema had agreed to as “garnishment” which Ohler says frames it in a way that creates suspicion and implies a “lack of voluntariness or even a resistance to repayment.”

She says the framing of the report paints a misleading view that Mema was the only person using the credit cards for personal purchases with a plan to pay it back, that he worked to silence people who raised concerns about the use, avoided repayment via a bounced cheque, and only repaid the amount through an involuntary wage garnishment.

Additionally, the characterization of Mloyi as someone who may facilitate future potential misdeeds has an “inescapable whiff of race-based bias”.

Ohler found that Mema’s complaint that his termination was a breach of the Human Rights Code to be discriminating on him due to his ancestry, place of origin, race and colour to be justified.

As such, she awarded him $583,413.40 in lost wages; $50,000 for injury to his dignity, feelings and self-respect; and $10,150.04 for expenses as a result of the termination for a total of $643,563.44 in compensation.

The City of Nanaimo issued a statement saying the decision is not what it expected or wanted.

“We are reviewing it in detail and will determine our next steps after consulting and obtaining advice,” the statement says. “We do not agree with the characterizations of 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.”

This decision comes one month after the B.C. Supreme Court dismissed a lawsuit filed by Mema claiming wrongful dismissal.

READ MORE: B.C. Supreme Court quashes ex-Nanaimo CFO’s wrongful dismissal lawsuit

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