Termination for threats, unsafe driving upheld

Antisocial worker claimed his actions were misconstrued but city’s concern for safety were real

A Windsor, Ont., city employee’s comments 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 and was moved to traffic operations after some downsizing. From the beginning, he didn’t like his new position and considered it a drop in status.

L’Esperence’s 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, and in August 2010 he 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 his return following the suspension, L’Esperence was involved in a confrontation with a member of the public on a road. He received a verbal warning. In February 2011, another three-day suspension — 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 so they could be rid of him.

Comments about gun only the beginning

On April 11, 2011, L’Esperence was partnered with a co-worker to drive around repairing signs. The co-worker, trying to make conversation, asked L’Esperence if he had done anything over the weekend. L’Esperence replied that 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 at the time to let it drop. However, he began to change his mind when, the next day, they drove by a group of women protesting abortion. He claimed L’Esperence rolled down the window of the city truck they were riding in 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, 2011, 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, angering 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 this time — 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 cell phone.” For the co-worker, this was the last straw, and he reported all the incidents to his supervisor.

City concerned about safety of employees and the public

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

L’Esperence 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 over his termination. 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 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 say anything 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, but recommended he be returned to employment after getting 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.

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, said the arbitrator.

“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.”

The arbitrator found L’Esperence’s instances of threatening comments and “erratic, even dangerous behaviour behind the wheel” over a relatively short, 10-day period, coupled with a seemingly complete lack of remorse or apology and attempt to downplay his misconduct, was worthy of termination, even without his past discipline record. The termination was upheld. See Windsor (City) v. Canadian Union of Public Employees, Local 543, 2013 CanLii 40522 (Ont. Arb. Bd.).

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