City worker fired for threatening comments (Legal View)

Erratic, dangerous behaviour behind wheel, lack of remorse also to blame
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 09/11/2013

Comments made by a municipal worker in Windsor, Ont. — involving guns and his co-workers — were sufficient to warrant his dismissal, an arbitrator has ruled.

Terry L’Esperence worked for the City of Windsor for 10 years, most recently in the traffic operations department repairing and replacing road signs.

Before joining traffic operations, he was a carpenter for the city but was moved to traffic operations after some downsizing. But from the beginning, L’Esperence didn’t like his new position and considered it a drop in status.

His discontent showed through in his attitude towards his co-workers in the traffic department, often referring to them as “flunkies.” This attitude did not go over well with other employees or his superiors.

In August 2010, L’Esperence received a four-week suspension for “displaying unprofessional and inappropriate behaviour toward fellow employees by swearing at them, calling them inappropriate names and making demeaning comments.”

An agreement between the city and the union reduced the suspension to three days.

Upon returning from the suspension, L’Esperence was involved in a confrontation with a member of the public on a road. He received a verbal warning.

And in February 2011, he was suspended for three days — reduced from an initial length of five days — for skipping a mandatory training course.

In each instance of discipline, L’Esperence submitted lengthy rebuttals, alleging he was “harassed, intimidated and bullied by management and my fellow co-workers.” He said he felt they were trying to get him to quit.

Gun comments just the beginning

On April 11, 2011, L’Esperence was partnered with a co-worker to drive around repairing signs. When the co-worker asked L’Esperence if he had done anything over the weekend, L’Esperence replied he had spent the weekend cleaning a gun.

The co-worker asked him if he was a hunter, to which L’Esperence reportedly replied that he “likes to keep his gun very clean.”

The co-worker then heard L’Esperence mumble under his breath and say, “There are a couple of flunkies in the lunch room that I’d like to take hunting.”

The co-worker later said these comments raised a red flag with him but he decided to let them go. However, he started to change his mind the next day when the two of them drove by a group of women protesting abortion.

He claimed L’Esperence rolled down the window of the city truck and yelled at the women to “Get a (expletive deleted) job.” The co-worker said some of the women heard L’Esperence and stood there with their mouths open.

The following week, on April 21, the co-worker asked L’Esperence what he had for lunch and L’Esperence replied that “Nobody here deserves a lunch.”

The co-worker defended the other employees but this angered L’Esperence, who mumbled something and then said: “The only good wop is a dead wop.”

That same day, they were driving down a one-way street when another car turned the wrong way onto the street. The co-worker claimed L’Esperence — who was driving — became agitated and stayed in the same lane.

The co-worker was worried there would be a head-on collision, but the other driver swerved away just in time. L’Esperence then commented, “Typical Arab, driving while talking on his cellphone.”

For the co-worker, this was the last straw and he reported all the incidents to his supervisor.

City concerned about public, employee safety

The supervisor passed along the report to management, which conducted an investigative meeting where the co-worker was interviewed. L’Esperence wasn’t part of the meeting.

The city felt L’Esperence’s conduct was of a “most serious nature” and he was a threat to the safety of both other city employees and the public.

Police called

Management decided to call the police and terminate L’Esperence’s employment.

He was led to a boardroom by his supervisor where he was placed under arrest for uttering threats. He was also given a termination letter before police escorted him from the premises.

After spending the night in a cell, L’Esperence was released and the charge was later dropped due to no reasonable prospect of conviction.

L’Esperence filed a grievance. He claimed he had said he had been polishing “billet parts” for his hobby of restoring cars, and jokingly said it was for a gun because people often think he says “bullets” instead.

He denied saying anything about taking flunkies hunting or cleaning a gun. He also denied rolling down the truck window and yelling at the women protesters, saying they only had “small talk” about the protesters with the windows rolled up.

L’Esperence also explained that his comment involving the slur against Italians was part of a story he was telling about what a customer said to him at a former job, and it was “just conversation.” He denied intending to threaten Italians who work for the city.

As for the incident on the one-way street, L’Esperence claimed he was trying to get the other driver’s attention and there was still plenty of room for them to pass each other. He also said they were only travelling about 10 miles per hour and he didn’t make a comment about the other driver.

The union requested a psychiatric and psychological assessment of L’Esperence that found there were risk factors regarding the likelihood of him acting violently in the future. The report recommended he be returned to employment after receiving psychological treatment dealing with anger management and conflict resolution.

However, the report also noted L’Esperence saw “little need for change” and would likely have difficulty attending such treatment.

Arbitrator believes co-worker’s version of events

The arbitrator found the co-worker had little reason to fabricate his accounts of the incidents and report to his supervisor, while L’Esperence’s accounts did not seem credible. And even if L’Esperence didn’t mean to offend or threaten from his comments, it didn’t excuse him from saying them.

“I agree that what (L’Esperence) is guilty of is saying stupid, offensive, demeaning and somewhat menacing sounding things about co-workers in the workplace, but without any intention and perhaps capacity to act on them,” said the arbitrator.

“However, the latter observation does not mean that (he) is entitled to say them or that the city is required to ignore them.”

L’Esperence’s instances of threatening comments and “erratic, even dangerous behaviour behind the wheel” over a short, 10-day period — coupled with a seemingly complete lack of remorse or apology — were worthy of termination, even without a past discipline record, said the arbitrator.

The termination was upheld.

For more information see:

Windsor (City) v. Canadian Union of Public Employees, Local 543, 2013 CanLii 40522 (Ont. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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