Legal opinion about Joe Fratesi's conduct

The following is a legal opinon sent to Mayor John Rowswell on January 5, 2001 by Sudbury human resources lawyer Jack Braithwaite:

**************************************************************** Gatien Braithwaite Barristers & Solicitors HUMAN RESOURCES LAW FOR EMPLOYERS Please reply to: Jack Braithwaite

PRIVILEGED AND CONFIDENTIAL

VIA FACSIMILE (705) 541-7171 AND ORDINARY MAIL 5 January, 2001

The Corporation of the City of Sault Ste. Marie Civic Centre P.O. Box 580 99 Foster Drive Sault Ste. Mane, Ontario P6A 5N1

Dear Mayor Rowswell: Re: Chief Administrative Officer

In our meeting of 4 January, 2000 you have asked us to review the letter of 20 December, 2000 from Mr. Fratesi, the Chief Administrative Officer ("CAO") to yourself and to provide a legal opinion with respect ro any potential liability.

In particular, you asked us to advise whether or not the letter suggested any legal subtleties which may leave the City facing a wrongful dismissal suit.

We have reviewed the letter of 20 December, 2000, including various documents, newspaper clippings and other background information you have provided as well as relevant legislation.

Accordingly, we are of the following opinion:

i) the letter clearly sets out the perceived role of the CAO, if not, an enlarged role;

ii) the letter clearly fetters any authority the Mayor may have or may perceive to have;

iii) the letter has the impact of undermining any authority of the Mayor to the extent of setting roadblocks and/or impediments to the Mayor affecting any change and/or pursuing a vision for the community;

iv) the letter provides a first and early stage of documentation to set the stage and paint the picture of a reasonable employee working within the parameters of his authority despite the unreasonable and unauthorized requests of the Mayor;

v) the letter raises the issue of "firing" which would suggest that any attempt to terminate the CAO at any time in the future would, in fact, have nothing to do with his performance, but would arise out of a previous intention to carry out an irrelevant agenda;

vi) the impact of carrying out such an agenda would potentially extend liability against the City to include a claim of bad faith conduct or punitive damages and mental distress.

LAW - Wrongful Dismissal Suit

Generally an employee may make a claim for wrongful dismissal based on the following grounds:

1) the employer failed to establish just cause;

2) in the absence of just cause, the employer failed to provide reasonable notice;

3) the employer arbitrarily and unilaterally changed a fundamental term of the employment relationship and/or engaged in treating the employee unfairly to the extent of making continued employment untenable.

In the event an employee believes that termination of his/her employment may be pending, the employee may be advised by a legal specialist to adopt the following strategies:

a) establish a case by documents which would include responding to all memoranda sent by the employer which may be critical of the employee's job performance;

b) request a job description from the employer so as to preclude the employer from raising any dereliction of duties outside the scope of the written job description;

c) build a file which would include performance evaluations, letters of praise, projects which have been accomplished; documents concerning salary increases and promotions.

We are of the view that the timing, tone and content of the letter including the reference to the term "fire" on at least three occasions at page 3 of the CAO's letter of 20 December, 2000, is likely the first step in the CAO's strategy to build a defence against any potential wrongful dismissal suit under the new council through documentation.

It is clear that termination is an issue on the mind of the CAO and, accordingly, council can expect the CAO to build a file in his support; to send self-serving memoranda; to build a paper trail to preclude the employer from raising cause and to advance a position of compliance and cooperation.

For example, we direct your attention to the last paragraph of page 3 of the letter wherein, after clearly identifying fetters to the Mayor's authority, the CAO advises that "I hope that you can see that I have been doing my best to build a good working relationship with you and Council".

We note that the Mayor and Council took office on or about 4 December, 2000, only weeks before receipt of the CAO's letter of 20 December, 2000.

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