What if councillors were our employees?
City councillors are employed by the Corporation of the City of Hamilton. Their employment comes in four-year fixedterm contracts at the discretion of the voting citizens of the city. Technically, we the voting public do not employ city councillors. But what if we did?
Let’s imagine that you are a very wealthy landholder with extensive properties. (Perhaps you are the Queen). You employ property managers to take care of the day-to-day operations for you, including, ultimately, supervising all of the employees.
The property managers mention that the bacteria counts in one of the streams and lakes are extremely high and put up a few signs so that your friends and family are made aware. What the property managers do not tell you is that one or more of the employees left a sewer gate partly opened and that sewage had been leaking into the stream and lake for four and a half years ... constantly. About 10 months after the property managers became aware of this grievous error, you found out on your own.
When you confront the property managers, appalled that this information was not immediately disclosed to you, excuses are made. You are told that they received legal advice indicating that keeping the four-and-a-half-year leak a secret from you and your friends and family might lessen any fine that will eventually be levied by the Ministry of the Environment for the leak.
Basically, since you are the one who would have to pay the fine, keeping this a secret was for your own good. Of course, it was you and your friends and family that had been exposed to this effluent over a four-anda-half-year period.
Would you have just cause to fire your employees, the property managers, without notice or pay in lieu of notice? The answer is quite clearly, yes. The property managers have breached their obligation of honesty and good faith that they owe you as an employer. Any judge would accept that the necessary relationship of trust has been destroyed by their actions.
The problem, of course, is that you have signed a fouryear contract that is fixed and has no clause allowing for termination before the four years is up, even if there is just cause. You have a problem. You can send the property managers home, but you still have to pay them for the rest of the four years. You might decide that since you’re going to have to pay them no matter what happens, you might as well get what work you can out of them for the remainder of their contract and then simply not renew.
Of course, the citizens of Hamilton do not have a legal way to send our councillors home even if we were willing to pay them for the rest of their term. Some would argue that is as it should be. Councillors are elected to make hard decisions and if we could recall them every time a majority disagreed, it could lead to administrative mayhem.
Regardless, in the absence of an impeachment option, it will be up to the electors to decide. Ed Canning practises labour and employment law with Ross & McBride LLP in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com
For more employment law information; hamiltonemploymentlaw.com