At the October 24 Council Meeting, there were objections from both the public (Mr. Mark Whiteson) and Council (Councillor Brenda Parkinson) regarding the recommended hiring of Mr. Joseph as the Corporate Officer for the District of Sooke.
In all cases, the objecting parties clarified that their objections had nothing to do with the person selected for the position, but rather the process of the appointment itself.
When Council considered the recommendation to hire Mr. Joseph as the Director of Corporate Services and Corporate Officer, Mayor Maja Tait indicated that the CAO is their sole employee, and that Council oversees appointments required by law, as is the Corporate Officer. She further indicated that an “independent review panel” looked after the hiring. How independent is not known, as no further information was provided.
Councillor Parkinson spoke to the hiring timeline. Given that Mr. Joseph was hired on February 1 and his probationary period completed on August 1 – securing his ownership of his position – Parkinson said she did not understand how the District could have competed “for a position that was already secured.” (See the full timeline below.)
After Councillor Parkinson outlined her objections, CAO Tere.sa Sulliva.n, stated that Councillor Parkinson had her facts wrong.
“That is factually incorrect,” responded the CAO. “We did not post a position that Mr. Joseph had already owned. He was on contract. There’s a difference between full time work with the District and contract work with the District. With respect to the timeline, I brought the Director of Corporate Services in on contract not knowing how long it would take for that Director to amalgamate his department and start doing the job that needed to be done.”
Ms. Sullivan spoke to keeping her commitment.
“One of the things I would like to remind Mayor and Council about is that I did make a commitment to this mayor and council and to our public that we would post that position. So I made that commitment twice at a public meeting. So that’s what I did. I lived up to my word.”
This commitment was one that was imposed upon her. At the March 14, 2016 Council Meeting, after the CAO recommended the direct appointment of Mr. Joseph as the CO, Council directed staff to compete—not direct appoint—the position.
That commitment (aka “following a council directive” aka doing her job) was carried out a full four months later. The job was posted on or around July 12, with an application deadline another two months down the road, on September 1. By this time, Mr. Joseph’s probationary period, which concluded August 1, was complete.
Sullivan concluded with the statement that they have “terminated the contract and hired Mr. Joseph full time with the District.”
So, the question becomes, was Mr. Joseph originally hired as a contractor, as claimed by Sullivan, or as an employee, as claimed by Councillor Parkinson and in the public input period by Mr. Whiteson.
Contractor or employee?
To answer that, SPN looked through the initial February 1 document, titled “Employee Agreement” The term “Contractor” was never used, although the term “contract” (in reference to the “employment contract”) does periodically appear. The only indication of a periodic term renewal, after the initial employee probationary period, is after four years.
Terminology and spin aside, this article from The Balance details four provisions the CRA uses to determine whether a worker is an employee or a contractor:
- A worker is an employee when the employer has control over salary, hiring and firing, and determining the time, place and location of work;
- A worker is an employee when the employer has ownership of the tools required to do the job (eg computer equipment);
- A worker is probably an employee when the worker’s job activities integrate with the corporate interests of the employer; and,
- A worker is a contractor when that worker has a financially independent chance of profit or a risk of loss.
According to the aforementioned article, “Contractors don’t get benefit packages or pensions and pay their own Canada Pension Plan CPP/QPP contributions. As an employer of an independent contractor, you don’t have to do payroll, which involves withholding income tax, paying the employer’s share of CPP/QPP, Employment Insurance (EI), etc.”
As far as we could gather, that initial agreement with Mr. Joseph, was an Employee Agreement (complete with benefits, CPP, EI and vacation time), not a Contractor Agreement.
What difference does it make?
Had Council’s March 14 directive been acted upon in a more timely manner, i.e. within a week or two (or even a month or two), terminating an employment agreement within the probationary period would have cost the District two weeks salary. To break an employee agreement post-probation, that employee must be bought out, possibly costing anywhere from six months to one year’s worth of earnings.
If Mr. Joseph’s original contract were an employee contract (which, as far as we can determine, it was) denying him Monday’s appointment could have resulted in legal action against the District, and could have cost the taxpayers a significant chunk of change (the original contract with Mr. Joseph was for $115.000 annually).
Details matter. This is a municipal office that confuses questioning with bullying, that rewrites the Canadian Constitution’s freedom of expression, and that employs intimidation tactics when scrutinized. Now, they are rewriting history, calling an employee agreement a contractor term.
While Council’s March 14th directive to compete-not-appoint was not ignored, the timing was such that there could have been no other practical outcome.
- On January 24, Mr. Joseph is direct-appointed into a newly created executive position and signs a four-year Employee Agreement as the Director of Corporate Services, effective February 1.
- At a March 14 Council meeting:
- CAO Sullivan attempts to direct appoint Mr. Joseph as the CO.
- The CO position is rolled under the Director position.
- Staff is directed to compete—and not direct-appoint—the position of Director of Corporate Services and Acting Officer
- Joseph acquires the new title, Director of Corporate Services and Acting Corporate Officer
- On or about July 12 (four months after the Council directive to compete, not award), the competition for a Director of Corporate Services and Corporate Officer is posted, with a deadline of September 1.
- On Aug 1, Mr. Joseph’s probationary period is complete. He cannot, unless he magnificently screws up, be removed from his job. As Mr. Whiteson pointed out in a comment on SPN, if Mr. Joseph had not been appointed, the District would have been on this hook for severance.
For information between the differences between an Employee and a Contractor:
- Are you an employee or a contractor?
- EMPLOYEE OR INDEPENDENT CONTRACTOR? Be aware of the risks
- Hiring your first employee