Judge reserves decision in constructive dismissal case
It is now up to a Supreme Court justice to decide whether John Whalley, the former head of economic development for the Cape Breton Regional Municipality, was pushed out of his job or left voluntarily.
After hearing final submissions Friday, Justice Patrick Murray said he was reserving decision without date. He did not offer any indication just when he would be prepared to render a ruling in the case.
He heard testimony from five witnesses including Whalley, two former chief administrative officers — Michael Merritt and Jerry Ryan — current CAO Marie Walsh and human resources director Gordon MacDougall.
Whalley, who was hired in 1997, is suing the municipality over constructive dismissal, arguing he had no choice but to resign after the majority of duties, associated with the development of the Port of Sydney, were reassigned to a newly created port board.
The municipality has argued that Whalley was not exclusive to the port file and the reason he left was that he could no longer deal with the demands of municipal politics.
Whalley, 56, who holds a master’s degree in economics, further contends he is owed severance as a result of an employment contract he signed at the time of hiring.
Neither the municipality nor Whalley were able to produce a copy of the contract.
The municipality argued such a contract never existed.
In his closing remarks to the court, lawyer Tony Mozvik, representing the municipality, reiterated the claim of no employment contract and referred to the hire letter which dealt with salary, hours of work, vacations and medical benefits.
About an hour after a meeting with former chief administrative officer Michael Merritt in May 2015, Whalley submitted his resignation, which Mozvik said there was no question it was voluntary.
Whalley contends he was told the majority of the port file was being removed from his duties and he was being assigned involvement with discussions with Indigenous leaders concerning port development and the Marconi campus file that involved the proposed construction of a new campus in downtown Sydney.
But Mozvik said the port file was not exclusive to Whalley and that others were also involved in the development including the CAO and the mayor.
Also, in his testimony during the trial, Whalley said he had concerns over the purchase of land around the harbour in that the municipality may be granting a subsidy to a private business which it is prohibited to do under the provisions of the Municipal Government Act. He also expressed concern that a lawyer representing the municipality was in a conflict of interest. Mozvik said both those issues were addressed in meetings with officials from the Department of Municipal Affairs who he said cleared both concerns.
He said Whalley knew in advance that some of his port work was going to be assigned to a new port development board.
He likened Whalley’s reaction to such news, by resigning, as an individual who didn’t get his way and decided to take his ball and bat and go home.
“Not every reversal in life or at work justifies walking away,” said Mozvik, adding Whalley’s job responsibilities were broad and not specific to one area.
He referred to a newspaper article with Whalley after he left the municipality and joined New Dawn Enterprises as chief finance officer.
In the interview, Whalley comments that he had a hard time dealing with the politics of municipal work.
Blair Mitchell, representing Whalley, argued that because there is no copy of the employment contract does not mean it does not exist.
He referred to the evidence of Ryan who recommended such clauses, given the uncertainty of working in municipal government. A new regional government was being formed as Whalley was coming onboard.
Mitchell suggested Whalley would not have left a unionized federal job as an economic analyst to take a municipal position without severance protection.
He said removing port items from Whalley’s responsibilities after 15 years had rattled his client, who felt he was being pushed out of his position.
Mitchell also noted that Whalley’s former position was filled some 10 months after his departure and assigned new duties to include special projects.