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Missing documents key to CBRM severance issue
SaltWire Network | Posted: Aug. 21, 2018, 11:48 p.m. | Updated: Aug. 28, 2018, 12:36 p.m. | 4 Min Read
In his testimony Tuesday, former CBRM CAO Micheal Merritt, above, said a discussion he had with Whalley prior to his resignation was a positive one and that he was surprised to receive his resignation letter hours later. - Steve MacInnis
SYDNEY, N.S. — Neither the Cape Breton Regional Municipality nor its former director of economic development can produce any documents indicating the director is entitled to severance in the event of a dismissal.
Former director John Whalley, who has filed a wrongful dismissal suit against the municipality, and Gordon MacDougall, human resources director for the municipality, both testified Tuesday that neither could find any trace of documents referring to a severance.
In fact, neither party could find signed documents relating to pension, medical benefits or other related matters.
The only document produced by the municipality was a letter of hire which did not address the issue of severance.
Whether Whalley is entitled to severance is a key element in the suit. Whalley has testified that he signed an employment contract stipulating he was entitled to as much as 18 months in the event of a dismissal.
"There was no employment contract," testified MacDougall, adding his search of municipal files did not produce any copies of Whalley's hiring documents.
Former chief administrative officer Jerry Ryan has testified in the trial that he had such a clause in his contract and it was carried over to director positions such as Whalley's.
When Ryan left his job in 2013, he did not receive a severance but was instead paid as a consultant until becoming fully eligible for pension.
In his testimony, MacDougall said no severance is offered to senior managers or other non-union employees.
During questioning by Whalley's lawyer, Blair Mitchell, MacDougall said he did not contact Ryan or former HR director Rona Green during his search for documents.
Whalley was hired by the municipality in 1997 and issued a resignation letter in 2015.
He said his decision to write the letter came after a meeting with former CAO Michael Merritt during which Merritt informed him that the development of the Sydney port would no longer be handled by Whalley.
"The port file was the vast majority of my time. It was everything. It was all my work," said Whalley, his voice trembling.
"It was not a friendly meeting," he testified, in reference to his brief meeting with Merritt.
He said Merritt offered no explanation for the sudden change in duties.
Merritt, who testified Tuesday, said the discussion with Whalley was a positive one and that he was surprised to receive a resignation letter hours later. Merritt described Whalley's work on the port file as essentially research.
Whalley said he felt he had no choice but to leave, given that the bulk of his work was going elsewhere. Merritt told him he was being assigned the Marconi file.
The Marconi file involved the proposed construction of a new waterfront campus for the Nova Scotia Community College.
"To be the municipal lead on the Marconi project was just a shell. This was a building project and not something to be led by an economist," said Whalley, who holds a master's degree in economics.
He suggested other reasons were at play in his dismissal including concerns he expressed over the acquisition of properties along the waterfront.
Whalley said he was concerned over possible conflict of interest involving a lawyer representing both the municipal and a property seller. Also, he said, there were concerns about a land deal in which the municipality would purchase a property and then lease it back to the seller.
Those concerns were shared by then chief financial officer, Marie Walsh, who is now the CAO. There was also a similar opinion expressed by a Department of Municipal Affairs advisor to the municipality.
Also, said Whalley, Merritt wanted him to present an issue paper to council on the sale and present it in a positive manner.
Whalley said had he stayed, he would have become complicit in promoting something which he had serious questions about.
Merritt, who served as CAO from 2014 to 2017, said he never heard anyone ask that Whalley be fired, noting that it would be the job of the CAO to fire senior staff.
Hired in 1997 at $50,000 per annum, Whalley left in 2015 making $81,000. He said during his time with the municipality, he never underwent any formal job performance evaluations. He said he only had one letter of reprimand issued after he wrote a letter to the editor in 2011 in the Cape Breton Post arguing against any move to centralize economic development funding to the provincial capital.
During his questioning of Whalley, Tony Mozvik, lawyer representing the municipality, noted that Municipal Affairs issued a comment concerning the waterfront property purchase concluding the final decision would rest with the municipal solicitor who also deemed there was no conflict of interest involving another lawyer.
Whalley admitted that no one fired him or asked him to resign.
He said he was also concerned over the creation of a new ports board which he described as being akin to an extension of council but who can meet and make decisions in private.
"The circumstances were such I knew I could not come back," he said.
The Supreme Court trial continues today before Justice Patrick Murray.
Former CBRM economic development officer takes witness stand
Legal wrangling takes over in CBRM constructive dismissal suit
Closing arguments expected Friday in municipal dismissal case
Judge reserves decision in constructive dismissal case
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