Canadian Employment Law Today

CELT Sept 4 2013:celt 467.qxd 13-09-13 10:59 AM Page 8 September 4, 2013 Worker said he was making conversation but co-worker disagreed ...continued from page 1 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 8 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. "What (the employee) 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. However, (this) does not mean (he) is entitled to say them or that the city is required to ignore them." 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.). CELT Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. Recent topics include preception of harassment, balancing employee family obligations, enforcing workplace policies, employee theft, clarity in employment contracts and suspicious employee sick days. You can view the blog on www.employmentlawtoday.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013

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