The former chief financial officer (CFO) for the City of Nanaimo has been awarded nearly $650,000 after the British Columbia Human Rights Tribunal ruled his suspension and termination were discriminatory.
The Tribunal highlighted, “I am satisfied on a balance of probabilities that – however subconsciously – pernicious stereotypes of a Black man as less honest or trustworthy factored into the Misconduct Report.”
This conclusion rested on the grounds that the City’s decisions to suspend and terminate were tainted by the discriminatory Misconduct Report, connecting the CFO’s protected characteristics to the allegations against him.
Editor’s note: This ruling was issued in August 2023, but just came to our attention. HR Law Canada covered an earlier ruling in July 2023 involving the CFO that found his wrongful dismissal claim had been filed outside the limitation period. But it ruled his other claims could proceed.
The case was focused on V.M.’s use of a City-issued corporate credit card, known as a P-card, which — despite a policy against personal use — he and other employees occasionally used for non-work purchases with an intention to reimburse the city.
V.M., born in Zimbabwe and identifying as Black, was the City’s CFO from 2015 to 2018. His employment ended following a suspension and termination in April 2018, prompted by allegations of serious misconduct. V.M. argued that this action was discriminatory, violating section 13 of the Human Rights Code based on his ancestry, place of origin, race, and colour.
‘Poor decisions’
Between 2016 and 2017, V.M. accumulated a significant amount of personal charges on his P-card — a total of 70 transactions for $14,148.97 — leading to internal concerns and subsequent reprimand and cancellation of his P-card by the City, which also conducted an audit on the personal use of P-cards by City staff.
The Tribunal said V.M. “certainly made poor decisions” regarding his use of the P-card, which would understandably raise concerns on his employer’s part.
“(V.M.’s) views on his own P-card use — that he could use it to purchase anything provided he paid it back — are difficult to understand given his education and experience,” the Tribunal said, illustrating the complexity of the allegations against him.
But the Misconduct Report the City prepared was “inflected with racial bias and stereotype – likely unconscious – which ran through each of the key points of the report,” it said. That flawed report was the foundation for the City’s decision to suspend and terminate his employment, it said, making the actions discriminatory.
Inconsistent treatment of rule breakers
The audit noted that another senior staff member, referred to as the “Other Outlier,” who had frequently used his P-card for personal purchases, was never reprimanded. This individual had incurred the highest number of personal purchases from 2010-2015, with instances of signing P-card statements months after the statement date, not always having receipts, and never being contacted by accounting to request payment of the personal expenses.
Despite the creation of a spreadsheet detailing all outstanding amounts for this Other Outlier, there appeared to be no follow-up on this issue, and no action seems to have been taken against them for their personal use of the P-card.
This contrasted with the treatment of V.M., highlighting a discrepancy in how personal P-card use was addressed among City staff.
The Tribunal’s decision also touched on broader concerns of racial bias within workplace practices and its subtle manifestations. It ordered the City to cease the discriminatory conduct and refrain from similar violations, awarding V.M. compensation for lost wages, injury to dignity, feelings, and self-respect, and legal expenses incurred.
Impacts on the CFO
V.M. testified that in the weeks after the City suspended him, his professional worth went “from hundreds to zero.” He attended a conference where everybody avoided him.
After being fired, he tried going through recruitment services, reached out within his network, and even tried bidding on projects, but has been consistently unable to find work. He was also asked to resign from his position on the executive committee of the Canadian Association of Government Finance Officers.
“(V.M.) said that he considers himself a strong, hard-working person, but that in the wake of his suspension and termination his health deteriorated,” the Tribunal said. “All he wanted was to be home sleeping. He had no interest in anything. Sometimes he could not pull himself together to look for jobs but eventually he sought therapy. He has been having issues with sleep and anxiety, as evidenced by medical notes.”
He started his own company in December 2018, but struggled to get clients and brought in no money.
“Professionally he said, ‘I am damaged goods.’ The City did not dispute (his) evidence on mitigation,” the Tribunal said.
Findings of discrimination
V.M. contended that racial bias played a role in the filing of the Serious Misconduct Complaint against him, as well as in his subsequent suspension and termination. He suggested that an evaluation of the evidence more strongly supports the presence of racial bias than the reasons provided by the City for his termination.
The City maintains that he was treated no differently than any other CFO would have been under similar circumstances, asserting that such misconduct would have warranted termination for anyone, regardless of their race. They argued this point despite acknowledging that proving differential treatment is not necessary to establish discrimination, the Tribunal said.
Further, the City argued there is no evidence to suggest that the reports of his misuse of his P-card, brought to attention by finance staff and flagged, were motivated by racism. The City’s stance is that discriminatory intent or motives are not prerequisites for establishing discrimination according to the Human Rights Code. This overlooks the Tribunal’s acknowledgment that racial biases can be subconscious, it said.
Damages awarded
V.M. was awarded a total of $643,573.44 by the B.C. Human Rights Tribunal. This compensation included:
- $583,413.40 for lost wages.
- $50,000 for injury to dignity, feelings, and self-respect.
- $10,150.04 for legal and other related expenses.
Additionally, the City was ordered to pay post-judgment interest on these amounts until fully paid, based on the rates set out in the Court Order Interest Act.
For more information, see Mema v. City of Nanaimo (No. 2), 2023 BCHRT 91 (CanLII)
