Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. legaltaxcanada@tr.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com Sales Manager: Paul Burton Email: paul.burton@thomsonreuters.com Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was Mema discriminated against in his employment with the district? OR Was the district not responsible for any discrimination against Mema? IF YOU SAID the district wasn't respon- sible for any discrimination, you're right. e tribunal noted that when the district decided to give RP a severance payment, Mema was no longer employed with it and his employment wasn't aff ected by it. Since the B.C. Human Rights Code only provides protection against discrimination within employment, there was no violation of his human rights from the settlement with RP, said the tribunal. e tribunal also found that while Mema complained he was the only manager not of- fered a severance package, he didn't mention if the other managers were off ered alternate employment by the district or whether the off ers were made before or after he resigned. As a result, there was no basis to infer that Mema's race, colour, or place of origin were factors in the lack of a severance off er, said the tribunal. As for the email and the dress code com- ment, the tribunal noted that those took place well before the six-month limitation period for human rights complaints in B.C. Mema argued that the district's severance package to RP "re- set the clock" for him to make his complaint on all the district's actions, but the tribunal dis- agreed. Without a particular reason that was in the public interest, the tribunal decided not to consider Mema's late-fi led complaints about the 2013 email and 2014 comment — in fact, it would be against the public interest to encour- age other complainants to ignore the time lim- its, the tribunal said. "Undoubtedly, racism exists in Canadian society and the tribunal has an important role in eliminating it," said the tribunal. "However, the code has established limitation periods that apply to complaints, including complaints involving allegations of discrimination on the basis of race, colour and place of origin. Pro- tection under these grounds are not exempt from the limitation periods." For more information see: • Mema v. District of Sechelt, 2017 CarswellBC 2313 (B.C. Human Rights Trib.). A race against discrimination for municipal CFO THIS INSTALMENT of You Make the Call involves a municipal employee who said he faced several examples of racial dis- crimination in his job. Victor Mema — a black man who immi- grated from Africa as a refugee in 2008 — worked for the District of Sechelt, B.C., as its chief fi nancial offi cer (CFO) from April 8, 2013, to Aug. 28, 2015. On March 6, 2013, while Mema was still a candidate for the district's CFO position, an employee of the district – referred to as RP – sent the chief administrative offi cer (CAO) an email with derogatory racial comments and innuendo about Mema, saying that if the district didn't hire Mema, they would be "lynched." Mema didn't know about the email at the time. On May 5, 2014, 13 months into Mema's tenure as CFO, he attended a senior manage- ment meeting. A dress code was discussed and Mema gave his thoughts on the subject. However, according to Mema, RP interrupted him and said he had no right to speak about a dress code because from where Mema came from, people ran around without clothes on. Mema said he told the CAO that the com- ments caused him anxiety and the CAO told him RP would be disciplined and told to be respectful. In October 2014 Mema discovered the March 2013 email with the "lynching" com- ment. He said he fi led a harassment com- plaint with his supervisor. e district's council met on Nov. 5 to discuss Mema's allegations regarding the email and the dress code comment. Mema explained the impact RP's conduct had on him, and he reached an agreement with the council that he wouldn't fi le a human rights complaint if RP's employment was termi- nated with cause. During the same meeting, the council approved a resolution terminat- ing RP's employment for cause. In July 2015, RP indicated his intention to begin a wrongful dismissal action. In July 2015, Mema discovered he needed surgery and advised he needed six weeks off work, returning in September. Five days later, the district announced a reorganization over the next 18 to 24 months and off ered Mema a new position. However, Mema was concerned over the timing and nature of the changes and thought it would mean a diminished role for him, but the district tried to assure him it was intended for him to remain the CFO. On Aug. 21, Mema provided notice that he was resigning eff ective Aug. 28. ree days later, the district gave him a proposed contract for a position in the new organizational struc- ture, but Mema responded that the district was making unilateral fundamental changes to his position, he hadn't been told his new salary and benefi ts, and the district was changing the timeline for implementation. He felt the district was trying to get him to leave. He also said ev- ery manager at the district except for him was off ered a severance package. In December 2015, a new council took offi ce in the district. A month later, Mema learned the district had reversed the decision to terminate RP with cause and instead paid him a severance package. Mema then fi led a human rights complaint alleging discrimina- tion in employment on the basis of race, co- lour, and place of origin stemming from the March 2013 email, the dress code comment, the lack of severance when he left the district, and the breach of his agreement regarding RP's termination — eff ectively rewarding RP for his racism, he said.

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