HomeMy WebLinkAboutYoussef 16-06-10In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations
Act
Between:
OPSEU PENSION TRUST
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION
Grievance of Emad Youssef
OPSEU File Nos. 2014-0568-0008,009, 0010
Arbitrator: Randi H. Abramsky
Appearances
For the Employer:
Lisa Bolton Counsel
Tamara Johnson Associate General Counsel
Iouri Vorbiev Counsel
For the Union:
Tim Hannigan Counsel
Hearing: September 28, 2015, February 23, 2016, February 24, 2016
March 8, 2016, March 23, 2016, March 24, 2016, April 14, 2016
May 9, 2016, and May 17, 2016.
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AWARD
There are three grievances at issue in this matter. The primary grievance alleges
that the Grievor, Emad Youssef, was terminated without just cause. Another grievance
alleges that he was disciplined in regard to a warning letter, without just cause. The last
grievance alleges that he was harassed by management. This Award deals with all three
grievances. The Employer, OPSEU Pension Trust (“OPTrust” or “Employer”), denies
that it violated the collective agreement. It submits that it had just cause to issue the
warning letter and properly terminated his employment for inability to perform the duties
of his job. It also denies the harassment claim.
FACTS:
OPSEU Pension Trust administers the pensions of employees in the Ontario
Public Service represented by OPSEU. It employs approximately 250 employees, all of
whom use computers to perform their daily functions. To help serve those employees,
OPTrust has an Information Technology Division.
On February 23, 2012, the Grievor was hired as a Systems Specialist in the
Computer Services group. It is undisputed that he was hired specifically to assist with the
introduction of Citrix into OPTrust, and then to maintain and administer that system.
Citrix is a platform that enables software programs (applications) to be installed centrally
on the server instead of individual laptops. It also allows users remote access to their
applications, allowing them to access their files from anywhere in the world. According
to Mr. Sean Turner, Manager Data Governance and Management, Citrix was of “huge
importance” to OPTrust. It was expected to save time, increase consistency and increase
reliability.
The actual design, architecture and configuration of Citrix was outsourced to a
third-party contractor, IT Weapons. The Grievor was hired to assist them to ensure the
design met OPTrust needs, and then to take over the rolling out of Citrix to OPTrust users
as well as maintain and administer Citrix
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The January 2012 job description for the Systems Specialist position, which was
in place at the time of the Grievor’s hire, sets out the duties and requirements of the jo b.
It is a Pay Grade 8 position, which is the third highest pay grade in the bargaining unit.
The job description provides:
PURPOSE OF POSITION:
Provide system administration, configuration management and support for Microsoft
servers, Virtual environment and E-mail platform. Work closely with other groups in I.T.
to establish and meet organizational expectations.
DUTIES AND TASKS:
1. Provide advanced expertise in the configuration, design, implementation and
administration of system servers by:
Applying current trend knowledge and techniques for the management of
Microsoft server, virtual environment.
Maintaining a current lab environment in which proof-of-concept and
acceptance testing can be conducted;
Ensuring administration and implementation conforms to business service
levels and security expectations;
Applying a sound understanding of OPTrust requirements in the
development of server environments.
Adhering to business norms of thorough planning, testing, implementing and
documenting changes within either project lifecycles and timelines or normal
business growth/change requirements.
Maintaining current knowledge levels via formalized training; reading;
attending forums;
Maintaining current documentation and diagrams for all servers and
software.
2. Ensure continuity, integrity and availability of systems by:
Applying all necessary patches and upgrades required to maintain stable and
secure systems;
Proactively monitoring systems using native and third-party tools
establishing benchmarks; review changes in performance, utilization
patterns;
Planning, designing and implementing system configuration changes
according to performance and utilization prior to detrimental production
performance issues arise;
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Maintaining operating system and ensuring layered products meet current
support notification from vendors;
Effect planning upgrades and working with vendor resources as required;
Establishing contingency plans for any upgrade that may affect production
access or system availability;
Ensuring that troubleshooting of problems escalated via Helpdesk are
prioritized according to severity and level of affect on production;
3. Formalize and standardize administration procedures used by Computer
Services staff by:
Designing and developing backup routines, scripts and procedur es and
testing and training the team on their usage;
Establishing regular reports to be run to provide snapshots of critical system
profile information for use by management or other technical or project
resources;
Establishing routines, reports and output logs to be generated by computer
Services’ staff and review them regularly to identify issues or requirements.
Establishing change management processes for tasks performed as part of
the System Administration role in operational support functions which
impact on the server environment;
Implementing naming conventions for peripherals, queues etc.
Establishing default templates for use by Computer Services staff, e.g., user
id templates.
4. Other responsibilities:
Maintain currency with Web Architect, Security Specialist and Network
Specialist activities;
Act as senior technical resource on projects as required;
Staff training or transfer of knowledge to other team members or to key
users;
As assigned.
SKILLS AND KNOWLEDGE
Knowledge of and expertise with Microsoft Active Director, MS Exchange
2010 and Blackberry Enterprise 5.0 service, Citrix Xendesktop, XenApp,
and VMware (VSPerer4.0/5.0).
CCEE for virtualization, VCP/VCAP and MCSE certification preferred.
Experience management multiples servers in a TCP/IP environment.
Superior communications and planning skills.
Ability to co-ordinate teams resources on project work.
Strong troubleshooting and analytical skills.
Experience writing operating systems routines and scripts.
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The job description was updated in August 2013, as part of a reorganization
within the IT Division. The name of the specific group in which the Grievor worked was
changed to Infrastructure and Network Services, but the duties and responsibilities
required of the System Specialist position remained the same. A few additional skills and
knowledge requirements were added, specifically “attention to detail; organizational and
time management skills”, “critical thinking ability” and “excellent interpersonal skills.”
There is no evidence that these additional requirements were directed in any way towards
the Grievor.
At the time that the Grievor was hired, he was aware that his role was to assist in
the introduction of Citrix and then administer and maintain that system. It is undisputed
that there was no other internal expertise in regard to Citrix at OPTrust, and that he was
hired to be the Citrix “subject matter expert.”
Also at the time of his hire, there was another Systems Specialist at OPTrust,
Nadeem Ghori. His role involved the server infrastructure and virtual environment.
They served as back up for each other.
Both System Specialists, as well as two Network and Telecom Specialists were
“Tier 2” level experts for dealing with “tickets” submitted by staff in regard to technical
issues that arose. Tickets would generally be submitted to the Senior Technical Support
Analysts (STSAs) who work at the Helpdesk. They are “Tier 1” analysts, the first point
of contact, who see if they can fix the problem. If a ticket involved a system level issue it
would be escalated to one of the System Specialists; if it involved a network issue, it
would be escalated to one of the Network and Telecom Specialists. A timely response to
tickets is expected. An acknowledgement of the ticket is expected within an hour, and
most tickets are expected to be resolved within a day or two. At times, backlogs of tickets
would develop and be placed in a queue.
Initially, while Citrix was being developed, the Grievor did not have to res pond to
tickets except when Mr. Ghori was on vacation. Once Citrix was introduced, however,
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the Grievor became responsible for all Citrix-related tickets which could not be handled
at the Tier 1 level.
At the hearing, the Grievor was reluctant to acknowledge this responsibility. On
cross-examination, he did not agree that he had this responsibility – it was his task as well
as that of the Helpdesk. When pushed, he acknowledged that tickets that could not be
resolved at the Tier 1 level concerning Citrix were his responsibility.
At the time of his hire, the Grievor had fifteen years experience in information
technology. He had significant Citrix experience. His resume states that from October
2006 to September 2011, as a Senior Systems Administrator, he “[p]rovided user with 2nd
and 3rd level support and worked as last point of escalation”; he “[a]dministered &
designed Windows 2003/2007, Citrix Metaframe 4.0 & XenApp 6.” From October 1999
to June 2001, as Network/Service Manager and Senior Network Administrator, he
“[t]ested and enhanced network and policy security includ[ing] PIX firewall, Citrix and
all VPN connections to the Citrix server” He also “migrated users’ mailboxes … and
installed Outlook 2000 …for all users …including remote Citrix users.” His resume lists
two Citrix courses: April 2008, Citrix Presentation Service 4.5 Administration” and April
2011, Citrix XenApp 6 and Windows 2008 R2”. It states that he had a “B.Sc. in electrical
engineering with 15 years experience in information technology with strong project
planning, consulting, prioritize, initiative, negotiation and leadership skills.” He would
“[c]omplete tasks and project within time and budget manner.” He also spent five years
as a private IT consultant, where he evaluated existing systems and recommended
software, hardware, and monitor software, performed network upgrades including
servers, software and hubs; evaluated and tested new hardware and software, and
collected and maintained accurate documentation of client environments.
Originally from Egypt, the Grievor moved to Canada in 1995. He took a number
of computer courses, and worked in various positions – Network/Service Manager and
Senior Network Administrator; Senior Systems Administrator; Senior Windows Systems
Engineer, plus Senior IT Consultant. He testified that he accepted the job offer from
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OPTrust, rather than another higher-paying position, because this job had a pension and
better benefits. The pension was important to him because at his age he wanted to receive
a pension upon retirement.
1. The Period Between February 2012 to October 2013.
The Manager of Computer Services at the time of the Grievor’s hire was Mr. Paul
Gill. Under the parties’ collective agreement, there is an eight-month probation period.
On October 30, 2012, the Grievor received a letter from Mr. Gill, advising him that he
had passed his probationary period. It is a very positive letter. It states, in relevant part:
Dear Emad,
I am pleased to let you know that your probationary period has ended on October
29, 2012; you have successfully completed this period and reached this milestone.
Congratulations! I sincerely hope you feel at home here at OPTrust.
Your enthusiasm and positive attitude have been a notable aspect of your time here
at OPTrust. You have shown strong leadership qualities, taking control of the 1st
critical project. You have shown your commitment to corporate and team goals.
Emad, we are very fortunate that you chose the OPTrust as your employer and you
have become a valuable member to the organization.
I look forward to working together with you in the challenges that face us ahead.
The Grievor’s first performance appraisal, for 2012, was satisfactory. He received
a “MR”, Meets Requirements, rating in all areas except “job knowledge” for which he
was rated as “NDS”, Needs Development/Support. The comment section for that
category states: “He is currently very knowledgeable with Citrix environment however
needs to pick up his skills for VMware, NetApp and Exchange environments.” In the
category “Initiative”, the comment states: “Emad always proposes solutions to improve
our server to users. For example, he proposed AppSense application so we can
proactively review user issues and performance on Citrix.” This comment has some
relevance as later on AppSense became a significant point of contention.
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The final part of the performance appraisal lists “Work Objectives for Next
Review Period”, for 2013. He was given the following objectives, all to be completed by
December 31, 2013, along with their respective “Measurement of Achievement”:
Objective 1: Finish installing the applications in Citrix provided by Citrix project
manager.
Measurement: Finish installation to be available for Helpdesk to roll out Citrix.
Objective 2: Enhance Technical knowledge required by taking courses in VMware, Net
app and Citrix Troubleshooting.
Measurement: Take VMware, NetApp and Citrix Troubleshooting Courses.
Objective 3: Complete Citrix Desktop back end configuration and testing to be available
for roll out to users.
Measurement: Citrix Desktop will be available to roll out to users.
At this time, the Grievor testified that he had “no concerns” about his work performance,
“not at all.”
It appears, however, at least from the Employer’s perspective, that matters began
to deteriorate, particularly towards the end of 2013. Mr. Gill left his role as the manager
in October 2013 and was replaced by Ms. Satwant Pannu. Ms. Pannu has been with
OPTrust for approximately fifteen years, starting on the Helpdesk. She then became an
Application Specialist, and had a prior management role with OPTrust. She described her
role as the Manager, Infrastructure and Network Services as being responsible for the
Helpdesk and Tier 2 support, and to ensure all systems are running and monitored, that
new applications were installed, as required, as well as maintaining patches and upgrades.
2. The Period from October 2013 to July 3, 2014.
Ms. Pannu had no prior interaction with the Grievor in regard to Citrix, or
generally, before becoming his manager. She was aware of the status of the Citrix project
– it was moving ahead but slower than expected. She did not know why. The goal, she
stated, was to get the remainder of staff to use Citrix by the end of 2013. Her mandate
was to “deliver the Citrix project.” The December 2013 date is disputed by the Grievor
who testified that the goal was to have all users on Citrix by May 2014.
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To get up to speed, Ms. Pannu met with Mr. Gill, the Grievor, other staff and the
Project Management Office. She testified that by October 2013, the design and
implementation of Citrix had been completed; it had been validated, and users were
beginning to be migrated, although a lot were not yet on Citrix because important
applications were not yet installed and the installed ones were not working right. It was
unclear why they were not working. There were a lot of complaints and end -users
(OPTrust staff) were “very unhappy.” Employees using Citrix could not access
applications, the applications were slow and they got wrong results. She testified that
Citrix was “badly maligned within OPTrust”. None of this testimony was refuted by the
Grievor.
Ms. Pannu regularly met with the Grievor in November, December and January to
understand the problems. She testified that the “real challenge” was that “he was unable
to understand why the technical issues were there and reticent to address them.” She
engaged IT Weapons to assist. She expected the Grievor, with IT Weapons assistance, to
find the solutions, but no substantial change occurred. Her concerns were formally set
out in the Grievor’s 2013 Performance Evaluation, which she presented to him on
January 28, 2014.
The Grievor’s 2013 Performance Review was significantly worse than in 2012. In
the first part of it, the employee self-assesses the achievement of his objectives from the
prior year. The Grievor rated himself as “ER” (Exceeds Requirements) in each category.
The “work objectives” in this document are worded slightly differently than they were in
the 2012 evaluation, but are substantively similar. This document reads as follows:
Assessment of Objective for Previous Review Period
Work Objectives Rating Completion Status and Comments
1. Finish installing the applications
in Citrix provided by the users
ER I successfully was able to complete this
task in a very short time which in my
consideration exceed expectation
2. Improve required Technical
knowledge by taking courses in
ER Not only took VMware course provided by
OPTrust but was able to be certified as
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VMWare, NetApp and Citrix
trouble shooting
VMWare professional.
3. Complete Citrix desktop
backend configuration and
compete testing to have the Citrix
desktop available for roll out to
users.
ER I successfully was able to complete this
task in a very short time even though we
had to change all the backend
configuration which in my consideration
exceed expectation.
In addition, the Grievor commented in the section “Other Accomplishments and
Achievements During this Review Period” - “Citrix was available to all users even
though we went through extensive installation period for too many applications.”
Ms. Pannu’s assessment of the Grievor’s performance, along with that of Mr. Gill,
was markedly different. She rated him as “NDS” in three categories – Leadership and
Ownership, Initiative and Written Communication. She testified that the Grievor “never
took ownership”. Instead, he wanted others to tell him what to do and how to prioritize.
In her written comments on the evaluation she states:
Emad continues to rely on the “this is a management decision” approach: “I think
this is more a decision and questions for management:
1. Is there a plan to IE10 for next year? (myself not aware of any).
2. Are we OK with portable Firefox. Is Management OK with postponing the IE9
plug-in for next year? Or till user request it.”
In a senior role the expectation is that the technical expertise is with the subject
matter expert.
In terms of “Initiative”, she testified that OPTrust really needed him to take the
initiative for finding solutions to the problems surrounding Citrix. Her comments in the
evaluation state: “Emad is encouraged to rely on his own technical expertise in coming
up with solutions. There is an expectation that a solution will be delivered by either the
manager or other resources.”
In terms of “Written Documentation”, she testified that this “NDS” rating was
based on the fact that he provided no documentation at all in regard to the technical
components of Citrix. Her written comment on the evaluation states: “Emad is expected
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to create documentation sets and processes around his responsibilities. Nothing has been
created to date and is a requirement for this year.”
Ms. Pannu rated the Grievor as “MR/NDS” in two categories – Service
Orientation and Quantity of Work. In terms of Service Orientation, she testified the
Grievor was service oriented but unable to deliver the end result – solutions. Her written
comment states: “Emad is service oriented. However there is sometime a lackadaisical
approach in appreciating the issue.” In regard to “Quantity of Work”, Ms. Pannu testified
that the Grievor “never completed work on time” and that this was a “constant pattern.”
Her written comments state: “Emad struggles with prioritization which leads to slippage.
I encourage better time management and prioritization. Emad needs to find a balance
between caution and execution – an overly cautious approach again results in slippage.”
Ms. Pannu rated the Grievor as “MR” in five categories – Interpersonal Skills,
Teamwork, Quality of Work, Oral Communication, Job Knowledge. In regard to
“Quality of Work”, the comment states: “No critical issues have been highlighted.”
Ms. Pannu testified that by the end of 2013, there were a number of applications
that had not been completed in Citrix, and many users had not been moved to Citrix. She
testified that the Grievor was adamant that he had completed his objectives, but she
disagreed.
The Grievor did not concur with this assessment at all. On January 30, 2014, he
wrote an email to Ms. Pannu that he was “expecting that all NDS to be at least MR after I
explained for you yesterday that I am currently covering two positions…” What the
Grievor is referring to is that the other Systems Specialist, Nadeem Ghori, left OPTrust
towards the end of December. This left the Grievor as the only Systems Specialist, and
reduced the Tier 2 support to three individuals. In his view, and this was repeated a
number of times at the hearing, his workload doubled with Mr. Ghori’s departure which
made it very difficult for him to keep up with Citrix and delayed the Citrix
implementation. He then went on, in his email, to state that he deserved an “ER” in every
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category. He stated that he needed management direction in regard to prioritization so
there would be no more “miscommunication”. He asked her to “revisit” her ratings.
In response, also on January 30, 2014, Ms. Pannu made one change, by removing
an example cited in the evaluation, but left the rankings the same, stating “as of now,
based on my observations, I believe the grades are merited….” She testified that the
Grievor’s performance problems were “the same when Mr. Ghori was working.” She
testified that no new work objectives were set for 2014 because “there was so much work
left to be done on Citrix.”
The Grievor also appended written comments to the evaluation. As will be clear,
English is not the Grievor’s first language. I have copied it, as it was written, without
adding any [sics]. It states as follows:
The opinion and observation based on the short period that Satwant became on board
and she as manager had assumption that there were requests for documentation and
process. My focus as per the previous manager request is on implementing Citrix for
all OPTrust users. For the process and any documentation, that was ITWeapon and
the project manager responsibility for year 2013 where our focus was Citrix
implantation.
I took ownership of the project and provided coordination with the users and
helpdesk during test and implantation of the project. I am very disappointed with
evaluation as instead of rewarding me after successful implementation of the project,
I feel that all my effort been diminished. I listed below my comments on each item
that I disagree with the rating or comments in the evaluation:
Interpersonal Skills: I believe I should get “ER” as I exceed expectation by
providing coaching advise to helpdesk.
Service Orientation: I believe I should get “ER” as I provided positive
approach and help find solution driven by “always there is solution for any
problem”. Also demonstrated excellent skills following up to ensure user
satisfaction with the service provided.
Leadership and Ownership: Demonstrated excellent leadership skills which
helped success of the Citrix with his accountability and advise throughout
the project. Also demonstrate excellent skills in creativity and innovation
with new ideas that helped overcome any obstacles that we encounter during
the implementation of the Citrix project.
Initiative: Initiative is one of the key skills that Emad have and helped in
many situations to alert for problem and provide solutions. Willing always to
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take more tasks. The part that Satwant provided was a reply for Patrick after
we just finished installing IE9 and it had been taken out of content and
presented and if I am not trying to find solution vs. reality is I was replying
to check if there is a plan to upgrade that I am not aware of and no
discussion been made. I am really very disappointed with taking text out of
content and change the meaning of what been said.
Teamwork: I consider myself as a key member in the team because he
always share experience with other team members which helped tier 1 to
gain Citrix skills in short period. the helpdesk team started with zero
knowledge about Citrix troubleshooting even after helpdesk got their Citrix
course because the course provided them with theories (according to their
exact word). Troubleshooting for helpdesk skills was essential to successful
Citrix project.
Quality of Work: the statement “no critical issues have been highlighted”
have a sense of negativity as if we are looking for any iss ues and this
statement contradict with the rating of “ page 4” “Assessment of Objectives
for Previous Review Period” as it show the quality of work rated “ER”. [In
fact, the ER rating was the self-evaluation of the Grievor, not Ms. Pannu’s
rating.]
Written Communication: Satwant as manager had assumption that there
were requests for documentation and process. My focus as per the previous
manager request is on implementing Citrix for all OPTrust users. For the
process and any documentation, that was ITWeapon and the project manager
responsibility for the year 2013 where our focus was Citrix implantation. I
worked very closely with Patrick to implement for example the document for
troubleshooting and escalation process. I think I went beyond what had been
requested and helped creating the documentation.
Job Knowledge: I have experience with Citrix that exceed the level of
administration and that is how I was able to work with ITWeapon in
planning and sometime correct the plan to have solid design of Citrix
environment. For the other OPTrust technology, I was able to demonstrate
ability to learn and manage the other technology and able to be certified as
well and very good example is VMware as I was able to be Certified
professional which is one of those certificate no one is able to gain it without
real experience. But I was able to get professional skills level in very short
time and with project workload in the same time.
The difference in the Grievor’s and management’s perception of his work
performance is striking. The evidence established that Ms. Pannu’s ratings in the
Grievor’s 2013 performance evaluation were not just based on her assessment, but she
consulted with Mr. Gill for his observations in November 2013 – which were negative.
Ms. Pannu testified that relations between Mr. Gill and the Grievor were very bad at this
time because of how poorly the Citrix implementation was going. The Grievor refused to
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attend meetings at which Mr. Gill was present. None of this testimony was refuted by the
Grievor.
Other emails from January 2014 confirm that there were problems with the
Grievor’s performance in regard to Citrix. In a January 20, 2014 email to the Grievor and
Ms. Pannu, David Hosey, Director, Enterprise Data & Technology Delivery (and Ms.
Pannu’s boss), wrote as follows:
Subject: Citrix laundry list
Good morning,
I have the following questions and hopefully we can come to a way of achieving
this to improve the user experience.
1. I can not save to my default drive for applications in Citrix- if I manually go and
use the absolute path to my private drive I can save, but the pre-defined relative
path issues me a “access not allowed” typed message for my private drive.
This is a problem I discovered when I joined the company and it is because of the
way the folder structure in the File server which host P: and Q:.
2. I can not add to the custom dictionary with Microsoft Office within Citrix. I am
thinking it is somehow related to the above.
3. Every week or so all my saved card/email data and info is blow n away in Citrix –
i.e., The ‘remember me’ setting within Remedyforce. I asked around IT and
apparently we clear all the cache data away for disk reasons? I can’t imagine saving
text data like I described causing disk storage problem. It sounds more like we are
clearing the entire cache rather than a targeting clean up of temp internet files, etc.
While these may appear minor in nature I think you can understand how these types
of annoyances can contribute to a poor user perception of using Citrix - when in
actual fact its the way Citrix was implemented. Can you kindly investigate and let
me know as Satwant advised others within the business have identified some of
these issues too.
Thanks for your help.
Ms. Pannu asked the Grievor to respond to this email with suggestions. He did so,
but the solutions he suggested were, in her view, inappropriate. For the first problem, he
suggested to move to a new file system or “create [a] new file server and build the proper
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file structure” which was “a big project; require lot of design, planning an
implementation.” Ms. Pannu found this to be “overkill” and an inappropriate solution.
For the second, he responded “did you try to choose for example P: where you saved
the dictionary? … May be we can arrange to reproduce the problem.” In her view, this
was no resolution or getting to the root of the problem.
For the third, the Grievor suggested it was a profile issue, and there were “two
options: (1) get a third party software ‘AppSense’ which do good job with the profile OR
(2) Manual clean up the profiles but that require you to have extra or spare servers so you
can clean them and put them back to production without affecting the user’s experience.”
Ms. Pannu testified that the AppSense recommendation was an appropriate response,
but that OPTrust had already purchased AppSense in January 2013, at the Grievor’s
recommendation, but it was yet to be installed. The Grievor was fully aware that
AppSense had been purchased but not installed. Whether or not the installation of
AppSense was an employer expectation of him is in dispute, and will be addressed more
fully later on.
Emails dated January 16, 2014, January 20, 2014, January 22, 2014 and January
29, 2014 reflect what Ms. Pannu described as the Grievor’s tendency to “deflect” work to
others. In each case, the Grievor, after having been asked to do something within his
role, asks that person to do it, including Ms. Pannu. In the January 22 email, the Grievor
responds to a question Ms. Pannu sent him concerning which version of Java was on the
Citrix “farm”. He responded with the version from Vigilant and added: “Please try to
check with them if we can install newer version and also if we installed newer version,
how that would affect their application.” She responded, “Thanks Emad – can you follow
up with Vigilant please?” He wrote back: “I was hoping that you are able to bring this to
the meeting with them. If not, do you have their contact information or how tor each
them?”
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Other emails from January also reveal problems with the Grievor’s handling of
tickets. In one, Ms. Pannu asks him if there “[a]re any pending tickets on your p late?”, he
responds: “I didn’t check the queue for a while now. I look and let you know.” Prompt
checking and addressing tickets is a requirement of the Systems Specialist job.
There was also an issue concerning printers and Citrix, which was identified as a
“high priority” item. While Ms. Pannu was looking to the Grievor to address it, his
response was that he sent the issue to ITWeapons.
As noted, the meeting between Ms. Pannu and the Grievor concerning his 2013
evaluation was on January 28, 2014. At the same meeting, Ms. Pannu presented to the
Grievor an Employee Development Plan pertaining to “Written
communication/leadership and initiative.” The “area of focus” was “Citrix Sustainment.”
The “Action Steps” were to “outline the current state of the environment”, “define the
administrative processes you will develop to ensure ongoing sustainment referencing
industry best practices” and “assess and define optimization requirements”. The
“Measurement” was “[t]he creation of a methodology document depicting the OPTrust
Citrix environment administration practices structured logically.”
The Grievor responded, in writing, stating as follows:
Emad Comments:
I am not sure I am clear on the development plan and not sure what it mean
as administrator by “outline the current state of the environment.” The Key
role of the Citrix Administrator is to help trouble shoot users session, install
new software. Not clear on what this statement mean.
The 2nd statement “define the administrative processes”, same I am not sure
what process need to be defined.
The statement “The creation of a methodology document” is a very general
statement which also not clear what specifically required and how it will be
measured.
The Grievor testified that he did not understand what was being required.
OPTrust already had documentation from ITWeapons regarding Citrix administration and
maintenance. Ms. Pannu testified that she met with the Grievor to explain the Employee
Development Plan more fully. She explained that the “current state of the environment”
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meant to document current issues with Citrix and an overview of Citrix at OPTrust as
well as to assess the issues (slowness), and provide ideas on how to address them. She
clarified that to “define the administrative processes” meant to describe the processes to
be followed as a Systems Specialist for moving applications into production (from
testing, development and production as well as weekly and monthly tasks). She told him
that she wanted a pro-active approach, not to wait for problems but ensure that problems
did not occur.
In addition, Ms. Pannu told him that the “key role” of the Systems Specialist goes
far beyond trouble shooting and installing software. It is a technical leadership position,
as set out in the job description.
The Grievor and Ms. Pannu had many discussions regarding the Employee
Development Plan, how to manage Citrix, per best practices, and discussions concerning
methodology. She testified that he accepted the Employee Development Plan, after a lot
of discussion. The evidence is undisputed, however, that the Grievor never created or
presented such a document.
Also on January 28, 2014, to assist in prioritizing the Grievor’s time, Ms. Pannu
put together a schedule “as your deliverables” and asked him to raise “ASAP if there are
any constraints, or conflicts that won’t allow you to complete these assignments.” She
attached a chart with six applications to move from Development to Production, with
dates attached. They were all outstanding applications that had not yet been published in
Citrix. The chart provided as follows:
Item
#
Environment Activity Due
Date
Resource Env. Due
Date
1. DEV Publish PerTrac Feb.3rd PerTrac/Patrick Prod Feb.
10th
2. DEV Configure the
GemPlus USB
card reader
Feb.
3rd
Noel PROD Feb.
10th
3. DEV Install MOPPS
standalone
Feb.
10th
JEA via Patrick –
meeting tomorrow
PROD Feb.
19th
18
calculator
4. DEV Publish CapIQ
Plug in for
Victor XU
Feb.
3rd
Capital IQ tech
support – please get
details from Victor
PROD Feb.
10th
5. DEV Bloomberg
Anwhere plug in
for Alex
Macdonald
Feb.
3rd
Richard PROD Feb.
10th
6. DEV Crystal Re
ports/BI
Publisher for
Brian Hawyrsh
Feb.
3rd
Alex/Bill/Luu PROD Feb.
10th
She also asked him for some additional information, mostly involving Citrix matters, and
noted that there were four tickets assigned to him personally “but I know there is a lot
more activity.” She also proposed scheduling the second weekend for “all Citrix
production updates as we are now post project and in sustainment.”
The Grievor did not accept the time line. He responded to her as follows:
Hi Satwant:
I understand that you need to give time line but the dates given is very close and
depending on support to provide set up, we don’t know when he will get back to us
with the correct set up we had been through this for more than 10 days and still
waiting for an answer. Also, for Crystal for example depend on user testing.
I will work on getting answers for the questions below tomorrow as I don’t know
top of my head and will have to dig to find out. (Also please count for this for the
estimate of time given.)
Thank you.
As to scheduling a time for production updates, he advised that he would “gather m y
thoughts” and get back to her.
The Grievor did not meet these deadlines. PerTrac was installed in Development
on February 10; it was not installed into Production by the Grievor. MOPPS was installed
into Development on March 14; it was not installed into Production by the Grievor.
Crystal Reports was not installed into Production by the Grievor.
19
On the morning of February 19, 2014, Ms. Pannu asked the three Tier 2
employees to “please send me a listing of all items on your plate including project related
work with current status and delivery dates please. I will need this by tomorrow
morning.” The Grievor responded as follows:
Here is the tasks required A.S.A.P.:
1. Work with ITWeapon on three issues (printer, Adobe crash, IE high memory)
2. Work with VMware on production problem with VCenter (CR#1582)
3. Work with Patrick to install Adobe Pro to DEV
4. Work on installing MOPPS to DEV which include the meetings
5. Working on choosing monthly maintenance window that accommodate most
tasks required after hours
6. Implement new scope on ash for testing to solve replication problems (CR #1585)
Those are the tasks plus production issues/alerts that arise (very recent example
Domain controller ASH been shutdown, decommissioned servers been turned on)
and provide help to helpdesk in troubleshooting and direction.
Ms. Pannu asked him to “elaborate with current status and targeted completion
dates.” He responded:
For items:
1. Currently working on it.
2. Have to open ticket very soon may be this week with VMware.
3. Thursday.
4. Not sure, I have to ask you for what is the target date but I have a meeting today
5. Didn’t even start but I would guess that this is a low priority may be next week?
6. Currently working on it.
It should be noted that #4, installing MOPPS to DEV, was on the January 28th list of
deliverables, with a date of February 10 for installation into DEV.
Ms. Pannu then responded that she was “looking for more fulsome details. You
haven’t included any of the documentation sets requested, the Citrix sustainment process,
the Citrix promotions or rollups, VM optimization, AppSense install. I’m sure there are
more than 6 items on your plate…?”
20
In response to the documentation requested, the Grievor sent Ms. Pannu the two
documents previously prepared by ITWeapons, one from March 2011 entitled “OPTrust
Citrix Application Delivery Design”, and one, a draft, from May 17, 2012, entitled
“OPTrust Citrix XenApp Maintenance and Best Practices.” He did not submit anything
that he created, which was what she wanted and expected as set out in the Employee
Development Plan. She did not receive any further response to her email. Notably, the
Grievor did not advise Ms. Pannu that it was not his responsibility to install AppSense.
In terms of Mr. Ghori’s work, two employees volunteered to assist: Long Nguyen, the
Network and Telecommunications Specialist and Richard Nelson, STSA. This occurred
in late January for Mr. Ngu yen and early February for Mr. Nelson. Both remained
responsible for their regular work, but volunteered to assist. On February 19, 2014, when
a ticket concerning an alert regarding disk space was sent to him, the Grievor replied,
copying Ms. Pannu:
Hi Noel,
We have three System Admin now including Long. Please do not assign tickets direct
to me but assign it to the queue and each one of us will work on tickets depend on
other tasks assigned.
Thank you.
Ms. Pannu wrote back: “Emad, just to be clear…the Systems Admin accountability is
still primarily with you. Long and Richard have volunteered to assist, but this is not their
prime responsibilities….” The Grievor pushed back, responding that if either Long or
Richard made a change to a system “now there are three members in question who made
the change. That means responsibility now been changed and accordingly the
accountability changed as well.” Ms. Pannu considered this another example of the
Grievor seeking to deflect work and not accepting his role and responsibilities as a
Systems Specialist.
In mid-March, Mr. Nelson became the Acting System Specialist, replacing Mr. Ghori
full-time. The Grievor acknowledged this but he did not believe that Mr. Nelson was
21
able to do the full spectrum of work as he did not have the same experience as Mr. Ghori.
He testified that he continued to do some of Mr. Ghori’s work, particularly the more
time-consuming parts. He testified that Ms. Pannu wanted him to focus on Mr. Ghori’s
work, more than Citrix. This was disputed by Ms. Pannu.
Ms. Pannu testified that part of the role of administrating and maintaining a system is
to keep a current inventory of users on a software application to ensure the users have
proper licenses. In February 2014, it became apparent that the Grievor had not
maintained such a list for ThinkCell. At the time, and at the hearing, the Grievor testified
that maintaining the list was the responsibility of the Project Manager. Ms. Pannu
testified that once a project is finished, as was the case with Citrix, the list is maintained
by the Systems Specialist.
Issues also continued in regard to difficulties that the Grievor was creating within the
IT team, particularly in regard to his deflecting work to others and his inability to resolve
the problems identified with Citrix. Ms. Pannu testified that she received many
complaints about this. As a result, she had several conversations with the Grievor
concerning assigning work to the Helpdesk on January 10, January 14 and January 23,
asking him not to do this. He continued, however, to do so. On April 8, 2014, the Grievor
asked Noel Candido, a Helpdesk employee, to assist Kevin Whyte, Senior Vice President
Information Technology, to replace his profile (as AppSense, the tool to assist with this
problem still had not been installed). Mr. Candido forwarded his email to Ms. Pannu
asking: “Why is he passing this to me? He’s the Citrix expert and was already working
with Kevin. I’ve got other things that are burning!”
Long Nguyen also testified about his interactions with the Grievor. He stated that the
IT team, particularly the Tier 1 and Tier 2 employees, are dependent on each other for
ticket support and must cooperate and work together. They sit together in a quad and
have regular interaction. He found that the Grievor was always “too busy” to help, so he
would go to Mr. Ghori when he needed assistance. When he made suggestions, the
Grievor would usually tell him it would not work. He found dealing with the Grievor in
22
regard to tickets “very challenging.” The Grievor would regularly blame the Network for
the problem, which was Mr. Nguyen’s area of responsibility, when it was not a network
problem. He also witnessed arguments between the Grievor and Tier 1 employees
concerning profile issues and printer issues. After Mr. Ghori left and he volunteered to
help out, he found that the Grievor regularly passed tickets to him, even when he was not
at work. He found this “overwhelming.” He raised these issues with Ms. Pannu, and he
avoided contact with the Grievor. His relationship with the Grievor “hit rock bottom.” He
was so frustrated that he questioned whether he wanted to continue to work at OPTrust.
In regard to the installation of AppSense, it was the Grievor’s evidence that he did not
have the knowledge to install and configure it. “Installing AppSense Suite” was added to
his “to do” list by Mr. Gill in January 2013, but the Grievor testified that it was subject to
his receiving additional training. He explained that he recommended to Mr. Gill that
ITWeapons be hired for the installing and configuration process and then he would
maintain it. A quote was obtained in August 2013 from ITWeapons for this but was not
accepted by Mr. Gill. Instead, Mr. Gill asked the Grievor to try to install it. He testified
that he tried but was unable to do so, and requested training to assist him. He testified that
Mr. Gill agreed to that but never provided the training.
Ms. Pannu testified that she discussed installing AppSense with the Grievor in
February, 2014, and she assigned the task to him as the Citrix expert. In her view, the
installation and configuration of AppSense was not “above and beyond” his position as
Systems Specialist, and it was part of his role. Consequently, even though Mr. Gill had
agreed that the Grievor did not have to install AppSense until he received training on it,
Ms. Pannu took a different approach and placed it on his “to do” list, as set out in the Feb.
19, 2014 email. The Grievor, at the hearing, still insisted that he was not required to
install AppSense.
On the balance of probabilities, I conclude that installing AppSense was a required
deliverable. It is undisputed that the Grievor did not install or configure AppSense. The
23
end result was that Citrix users continued to encounter profile issues which caused
operational problems as well as frustration.
Subsequently, AppSense was installed by Mr. Nguyen, with guidance from
ITWeapons. Mr. Nguyen testified that the installation was “straightforward” but it was
difficult to present it to the users. He read up on how to install it. It was Ms. Pannu’s
evidence that the same support from ITWeapons had been available to the Grievor.
Ms. Pannu testified that from January to April she had regular meetings and
conversations with the Grievor regarding priorities and his work performance. She saw
“no traction” in his addressing the issues identified or improvement. She, along with Mr.
Hosey, met with him on April 29, 2014 to discuss her views.
On May 1, 2014, Ms. Pannu testified that she worked from home, but had a long
conversation with him concerning a number of issues at work, and how he would tackle
them. She put her understanding of his response in an email, which she sent to him. His
response included that he did not have sufficient time and had trouble multi-tasking. He
then went home sick.
On May 5, 2014 at a meeting with union representation, Ms. Pannu, along with Mr.
Hosey and Director of Labour Relations Jane Rennie, presented the Grievor with a
Performance Improvement Plan (PIP).
The letter dated May 5, 2014, to which the PIP was attached, states as follows:
Dear Emad,
Re: Your Work Performance
To help you be successful in your role, we identified a number of areas in your
2013 performance review that were rated “Needs Support/Development” (NDS). I
also provided you with an Employee Development Plan. You had comments on
both of these documents and it appears there is a lack of clarity as to what your
work performance expectations are.
24
During my tenure as your manager, I have noticed a marked gap between the work
you do and the expectations of your job, as described in your job description. As
discussed in our meeting on April 29th, I’ve taken time to observe these gaps and
created a detailed list of how you can improve.
The Systems Specialist is an integral senior role to our group, and my expectation is
that the senior level skill set described in your job description should be used when
performing the required duties and tasks. This includes prioritizing your own work
assignments based on business requirements and within published deadlines, as
well as using a pro-active approach to assess issues and research.
My intent in providing you with this plan is to assist you in improving your work
performance and to help you become successful in your role as Systems Specialist.
I will be available for one-on-one coaching to discuss your daily, weekly and
monthly activities, as needed and also your project work.
It is important that you co-operate and take this Performance Improvement Plan
seriously. If you do not demonstrate significant improvement within the next 4
months, we may have to reconsider your employment status as systems Specialist at
OPTrust.
The PIP was a detailed document which sets out the skill/behavioural gaps, the tasks,
actions required, expected outcomes and expected dates of completion. It included four
areas:
1. Create a Citrix Sandbox Environment – target date June 30, 2014.
The “action” required was to “augment the current lab to include a Citrix farm equivalent
to production.”
The “expected outcomes” were:
1. The expected outcome is that you have created a Citrix sandbox environment in
the lab that is isolated from production, in readiness to test production issues.
2. The expected outcome is also that you make the current DEV into TEST resulting
in a Production Farm, Test Farm, and an isolated Development Farm.
3. Provide a detailed written report that sets out additional resources required to
enhance performance and provide operational redundancy, if applicable.
25
2. Evaluation of Deficiencies and Backup in VMWare and Citrix – target date: June 15,
2014
The “action” was to “evaluate issues and deficiencies in the current VMWare and Citrix
environment with remediation as defined in the Expected Outcome section.”
The “expected outcomes” were to:
1. The expected outcome is a detailed report on the current backup strategy for
production and non-production applications/servers including recommendations
for improving the back-up strategies.
The report is expected to list all deficiencies such as retention periods,
devices/applications not captures, single points of failure as per industry best
practices, and recommend practical solutions.
2. The expected outcome regarding servers is that you will have reviewed all
Adelaide servers and produced a detailed report that defines any production
applications and/or recommended plan for actioning.
3.Define operational processes within System Specialist realm – target date: May 30,
2014.
The “action” required was to “[d]efine the operational processes within the systems
Specialist realm as per job description and industry standards and where required
modified in adherence to the OPTrust environment.”
The “expected outcomes” were:
1. The expected outcome is that you have created a detailed Guide for the use of
other IT staff on the promotion/publication of applications to the Citrix farm.
2. The Guide should include a clear definition of the processes and full detailed
documentation of the following operational activities:
- applying security patches to all environments;
- spinning up additional VMs;
- relocating VMs from one node to another;
- assessing and assigning resources to over utilized VMs;
3. The Guide should also include clear definitions of the recommended performance
and capacity management approach, i.e.,
26
- create baselines on current storage utilization, and monitor to trend upcoming
utilization;
- how many VMs per host;
- targeted utilization levels (CPU, memory etc.)
4.Monitoring Tools – target date: May 30, 2014
The “action” required was to “[d]efine additional requirements and additional tool sets (if
required) for 3rd party monitoring in order to remedy the current dissatisfaction with what
is now provided.”
The “expected outcome” was:
1. The expected outcome is a detailed written report that defines additional
requirements and recommends additional tool sets (if required). It also includes
your recommendations for a robust, proactive monitoring system that flags issues
for auctioning instead of your current time-consuming process of monitoring
screens.”
Ms. Pannu testified that the PIP was designed to address performance issues and
address ongoing Citrix implementation issues. The first one – creation of a Citrix
sandbox – was to address the fact that some users were using applications still in
Development, as opposed to Production. The result was that OPTrust was unable to
identify the source of issues that arose. The goal was to create a “sandbox” – an isolated
area, to ensure three distinct areas: Development, Testing and Production.
The second one was to have the Grievor identify issues and deficiencies in regard to
backup processes, and how to remediate them. In terms of the servers, there was a
project to move the Adelaide servers to COLO. She was looking for an analysis of the
servers and a plan for moving them.
The third involved documentation. Ms. Pannu testified that documentation was an
intrinsic part of the job, yet the Grievor was not providing any. This task involved the
creation of a detailed guide for use by other IT staff for the promotion and publication of
applications into Citrix.
27
The fourth involved an analysis of monitoring tools. She was looking for a detailed
report that would review the current monitoring difficulties, the monitoring options
available and make a recommendation.
Ms. Pannu testified that she had discussions with third-party contractors (IT Weapons
and Gibralter) to ensure that the dates she set for completion were realistic.
The Grievor did not react well to the PIP. Ms. Pannu testified that he appeared
shocked and did not accept it. At the end of the meeting, he agreed to take it away and
ask questions to ensure he understood. To facilitate his ability to work on the PIP, the
Grievor was relieved off all Citrix and other responsibilities except addressing the Citri x
ticket queue backlog and working on the PIP.
A meeting was set up for Friday, May 16, to finalize the PIP. At that meeting, the
Grievor had a lot of questions and comments so that a second meeting was set up, where
more questions followed. In her view, he was trying to “dissect” the PIP. She testified
that he kept asking, “what to you mean? How?” She repeatedly explained what was
required. At one point, on May 15, 2014, Mr. Hosey wrote to the Grievor:
Emad,
I don’t wish to discuss this via email any further as we will sit down at our meeting
and run through this and clarify everything.
Please remember we are doing the performance improvement plan for your benefit,
as today there are significant gaps in your performance and unfortunately it is not at
the level of a pay grade 8. We are willing to put the time in to help you succeed, but
in the end you will only get out of this process what effort and focus you decide to
put into it.
A third meeting was held on May 26. The Grievor testified that he wanted management
to tell him what needed to be done. He wanted to know the “exact ask.”
After the third meeting, on May 26, the Grievor wrote an email to Ms. Pannu
summarizing the last PIP meeting. He wrote:
28
Hi Satwant:
I know you are busy and you may not have a chance to write summar y of our meeting.
Here is what I collect as per my notes.
Summary of our last PIP meeting and what we agreed on:
1. For item number 1 (create Citrix sandbox, test, and Dev): The expectation is to
create documentation that suggest having total of three environments (Production,
Development, and Sandbox/Test). The three environments will share the same
core Citrix servers and will be on production network. However, users will not
have access to Development or test environment (unless given for testing). The
document will provide timeline for each task and after approval; task will be
scheduled and executed. It is acceptable to suggest that having totally isolated
network test and development would be out of scope of this task.
2. For item number 2 (Backup strategy)
a. The report would include general industrial best practice and it is
acceptable to assume number of years of retention without investigating
with business. It is acceptable to suggest that investigation with business
to collect information about the backup requirements is out of scope for
this task and it is acceptable comment to say “investigation required for
business backup and retention requirement.”
b. The report will provide List of servers and function of each server with
diagram similar one provided by David. It is understandable that his task
will take longer time as it requires investigation to collect information as
much as possible.
3. For item number 3 (Guide line of how to create VMs): Provide documentation to
create the VMs as described is acceptable except Net App exclude and it is
acceptable to suggest NetApp courses which would provide more knowledge to
be able to administrator the Net App.
4. For item number 4 (provide suggestion for monitor tool): We agreed that
suggestions in the report would focus on the individual monitor components
because that will provide more details required for monthly report. Also, it is
acceptable to suggest in the document that more investigation is required
identifying best tool for each vendor and the purpose of the report to provide
general outline and identifying tools will be out of scope of this task.
Later that same day, Ms. Pannu sent a brief reply: “Emad – this is a reasonable
interpretation of the performance improvement plan. What we didn’t address were the
firm dates for completion. I’ve attached a revised document with the new dates.” She
sent a copy of the original PIP, with the dates set out above in the PIP.
29
On the following day, May 27, the Grievor wrote suggesting that the completion
date of May 30, 2014 for Items 3 and 4 “may not be visible. Because of other work load,
I was able to provide the summary only of our meeting; I will go through the tasks and
try to give you suggestion of completion dates.” Mr. Hosey wrote back that the dates
were firm, stating that “[y]ou have had these items known for some time and should have
been working on them well ahead of Satwant’s note. In terms of your comment around
other work load, your focus [is] solely the problem ticket queues and working on your
performance improvement plan. …”
Ms. Pannu testified that until the Grievor’s May 27th email, she assumed he had
been working on the PIP. After the email, she assumed the opposite. The Grievor
testified, on cross-examination, that he did not start the PIP earlier because he “needed to
know the tasks required exactly.”
Ms. Pannu testified that, in her view, the summary provided by the Grievor on
May 26, involved four technical parts of the PIP that were in dispute, but the other
requirements as set out in the PIP remained. She was adamant that she never agreed that
anything else would be removed from the PIP. The requirement for the first part was to
build the Citrix farm, not just create a document. She had wanted a separate lab
environment but he insisted that was not possible, so the compromise was to isolate an
area from production for testing. The document, she stated, would define it, but the
sandbox would be created.
The evidence is equally clear that the Grievor had a wholly different view of their
“agreement.” In his mind, the May 26, 2014 email replaced the PIP and became his new
deliverable. All that he was required to do, for all four sections, was documentation at the
level set out in the email.
On May 30, 2014, the Grievor provided two documents to Ms. Pannu – a Citrix
Guide of applications Promotion/Publication, and Monitor Tools. Substantively, the
30
Monitor Tool document is two pages. There is no analysis, at all, of the current
monitoring used at OPTrust and deficiencies with them. There is no analysis of vendor
tools except at a very superficial level. For NetApp, the report states: “One of the tools
that may provide the required reports call ‘NetAp p On Command Report’ from the initial
read of what this product can provide, I would suggest when we ready for future further
investigation, to consider more investigation with the vendor about this tool.” The
remainder of the document is similar. When asked on cross-examination how long it
took him to prepare this document, the Grievor could not remember. He could not recall
the amount of time any of the documents took him to prepare. In Ms. Pannu’s view, the
document was not helpful to guide OPTrust in terms of selecting new monitoring tools.
The Citrix Guide of Applications Promotions/Publications” is similarly basic and
generic. There is nothing in it specific to OPTrust. In Ms. Pannu’s view, it coul d not be
used as a guide for IT staff.
Ms. Pannu testified that she provided this feedback to the Grievor, who could not
understand why she was dissatisfied. She testified that she spoke to him about the lack of
content quality and lack of depth. According to the Grievor, he received no feedback
from Ms. Pannu about these documents. He thought he had fully met her expectations in
terms of these two documents.
A few other things occurred in May that further led to the Employer’s frustration
with the Grievor’s performance. The Grievor had insisted that he could only promote
one application per month on Citrix, yet over a weekend in May, Long Nguyen was able
to publish numerous applications, from development to production, that Citrix users had
been waiting for. This included MOPPS and Crystal Reports. He cleared half the backlog
in a single weekend. Further, Mr. Nguyen’s work on Citrix revealed additional problems
with the implementation of Citrix, which were outlined in an email he sent to Ms. Pannu
on May 19, including the improper installation of applications. Finally, profile issues for
Citrix users continued to occur with frequency in May and June.
31
On June 12, 2014, the Employer issued a letter to the Grievor, signed by both Ms.
Pannu and Mr. Hosey. It was, in part, a warning letter for “Lack of Cooperation and
Insubordinate Behaviour.” It asserts that the Grievor had not been cooperative with
management in many situations, by avoiding, delaying and cancelling meetings in regard
to his performance, and refusing to promote applications during established maintenance
windows without excuse, by failing to cooperate with other IT members and passing his
work off to them. The Grievor is specifically warned, in bold: “Any repetition of this
behaviour will result in immediate discipline up to and including termination.”
The letter also addresses the Grievor’s “Sub-Standard Performance.” It states:
As a senior-level IT professional, we expect that you would be able to do your
work with general guidance, but instead you request a daily task list from your
manager. You do not make any effort to manage your time or prioritize your work
on your own. As well, you have not installed any patches in Citrix for the last six
months. You did not report to management or log a ticket that the Edgesight
performance monitoring software was broken.
You stated that you could only promote one application per month, and yet one of
your team members was able to clear half the backlog of application promotions in
one weekend. There is a sharp disconnect between what you have told us about
how you use your time and what we know can be achieved b y others, who have less
experience with Citrix.
Further, we continue to note that your productivity is low. The number of tickets
you handle is by far the lowest of the team. When you work on a report or
document, we find that you aren’t clearing out the queue. You claim to be too busy
to help others in your department and yet you actually complete very little.
The quality of the documentation that you have produced is below the level that we
expect for your position.
In summary your work performance is unacceptable. We provided you with a letter
on May 5, 2014 that required you to demonstrate significant improvement within
the next 4 months. But in light of your behaviour and its negative effect on the team
and on client service delivery, we have had to reconsider that timeline.
Therefore, we will monitor your work performance closely and will hold a review
meeting with you regarding your progress in this regard no later than one month
from today’s day. If you do not show improvement in your productivity and
quality of work in this period such that there is reason to believe that you will meet
32
the requirements of your position, we will have to consider the viability of your
continued employment at OPTrust.
The Grievor testified that he was “shocked” by this meeting, and this feedback. He
was expecting “different feedback.” He had “no doubt” that he had delivered what was
required, not even a “1 percent” doubt that he missed anything. The May 26 th email was
“the ask”, he worked on it, and delivered it on time. He denied that he had received any
negative feedback from Ms. Pannu, and that he did “not understand what the problem is,
where I failed to deliver.” He wanted the Employer to “tell me exactly what is your ask?
Where did I fail? What’s wrong, so I can fix it.” He asked for details, trying to get
answers to his questions.
The following day, June 13, 2014, Director of Labour Relations Jane Rennie, sent a
“Supplementary Follow-up Letter” to the Grievor, concerning his behaviour at the June
12, 2014 meeting. It states:
Dear Emad:
Supplementary Follow-up Letter
Please note that the letter provided to you on June 12, 2014 remains in effect. There
will be no delays in implementing its terms.
At the yesterday’s meeting (June 12, 2014), we attempted to review two serious
matters with you: Your behaviour and your work performance. However, you were
completely unreceptive to accepting any instruction or direction; instead you
attempted to deflect and manipulate the discussion with implausible denials and
immaterial questions. Your approach served to completely frustrate the opportunity
to provide you with the direction necessary to correcting your work behaviour and
performance. This response to management direction is unacceptable and is not
viable on an ongoing basis.
Given the performance concerns that have been communicated to you, your
unwillingness to accept any direction from management make it unlikely that you
will be able to meet the requirements of your position. Accordingly, we urge you
to reconsider your approach. We expect immediate correction of the issues outlined
in the above-referenced letter.
Ms. Pannu testified that this letter was the Director of Labour Relations’ response
to the Grievor’s conduct during the meeting. The Grievor was not receptive to
33
acknowledging any problems with his performance, and attributed issues to his peers, her
and the environment at OPTrust. To her, it was “more of the same behaviour and
attitude.” Although Ms. Sonia Baistrocci who attended this meeting as the Grievor’s
Union Representative, was called to testify, she did not contradict Ms. Pannu’s evidence.
Another issue arose during the June 12, 2014 meeting. At one point, Mr. Hosey,
Ms. Rennie, Director of Labour Relations and Ms. Baistrocchi left the meeting room to
allow the Grievor to make a personal phone call. Ms. Baistrocchi testified that they sat in
the front entry area, and Mr. Hosey asked Ms. Rennie, “can’t we get rid of him today?”
Ms. Rennie replied that they would talk about it later. Ms. Bastrocchi told the Grievor
what she had heard, and the Grievor testified that was a “big shock” and he did not
understand. He had been working very hard to deliver the expected documents, doing 1.5
jobs, working overtime, and the Employer did not recognize his efforts but had a “pre-set
mind” to terminate him.
The Grievor also testified that Mr. Hosey, in March of 2014, mentioned to him in
a hallway conversation, that he had friends at Sun Life where the Grievor had worked,
and was told that he had issues there. The Grievor denied that he had any issues. He
subsequently asked Mr. Hosey what he had been told by SunLife because they were not
supposed to discuss anything, and Mr. Hosey assured him that “no one said anything.” It
concerned him. He wondered why, after two years, management was going back to a
former employer to ask about him.
In addition, at some point, Director of Labour Relations Rennie asked him
whether he had a problem taking direction from Ms. Pannu because of her gender. He
denied that was the case, and was offended by the question. Ms. Pannu testified that, in
her view, she never had an issue with the Grievor because of her gender – he was always
polite and respectful.
On June 13, 2014, the day after the June 12, 2013 meeting, the Grievor submitted
a document entitled “Backup Strategy and Current Adelaide Server’s Inventory.” In Ms.
34
Pannu’s opinion, as with the other documents, there was a lack of depth. It consists of
two pages for the back up strategy portion. It states that its purpose is to set out “general
business standard backup strategy” but the “[i]nvestigation and collecting of information
from OPTrust business units about backup and retention is out of scope of this document”
as is “[i]nvestigation with backup vendor…” It lists types of back up strategies: tape,
disk and cloud. It recommends the cloud but does not fully explain the basis of that
recommendation. It lists features to consider when looking at a backup vendor. The
Server analysis was several pages. It consisted of a list prepared by Mr. Ghori, but
updated by the Grievor. There is no information about relocating the servers to COLO,
another location.
When the Grievor was given the PIP, he was instructed to work on that and Citrix
tickets only. On June 13, 2014, Mr. Hosey sent an email to the Infrastructure and
Network Services staff in regard to “Aged Tickets for INS team”. He wrote:
Good evening
As part of our ongoing management of the incident process, we review weekly all
outstanding tickets in the queues.
Can you please look at the file that pertains to you and provide updates to Satwant
and myself for any ticket that is over 30 days with the reason why by Wednesday
noon.
The Systems Services and Citrix queues will be handled by Emad for investigation
and response.
My expectation is that the Citrix queue will be sunset in the next week and moved
to Emad’s queue for tracking and resolution; given he is prime for that technology.
On Thursday, June 19, Mr. Hosey wrote to the Grievor, advising that he did not
see a response. It states:
Emad,
Unfortunately I do not see a response from you on your ticket queue statuses, nor
anything in the system services and Citrix queues. It is unfortunate that the deadline
that was set for you was missed, but also equally important was your lack of
communication surrounding this. Of all the staff in our team, yours was the only
one we did not receive a response from.
35
We will chat tomorrow because this is unfortunately another situation where we
need to revisit an area of concern with you.
The Grievor then responded: “Hi David. I was able to close more than 114 tickets
from June 1 till today’s date. I think there was misunderstanding on my side because I
was expecting meeting set up by manager to get update. I have list of the tickets that I
closed and some of them waiting for users to respond. I will send you the report
tomorrow. Please accept my apology for the misunderstanding.”
After the Grievor went home, he sent a copy of the report to Mr. Hosey and
another email. He repeated that he had a misunderstanding then added:
I never missed a dead line (I always sent you the required document for the
performance improvement on time) …
The attachments show the tickets is closed and if any is open they have status
waiting for respond, the second document show the report for the tickets I closed
from June 1-19. I wanted to provide you with this document to show how much
effort I put in clearing the tickets.
Another email exchange between Mr. Hosey and the Grievor on July 2, 2013
reveals some confusion by the Grievor in regard to the closing of tickets. The Grievor
asked Mr. Hosey whether, for “long term solution tickets”, he should put a comment that
they will be addressed and put them on hold, or if he can close them and put a note in the
spread sheet that we created for those problems. He asked, “which solution would you
prefer?”
Mr. Hosey’s response clearly indicates frustration with the quality of the
Grievor’s ticket closures, which he reviewed in Ms. Pannu’s absence. In a number of
cases the Grievor wrote “Closing ticket to clear the queue as session already ended.” Mr.
Hosey responded: “[A]s you are aware we don’t close any tickets until we receive
confirmation of a fix by the incident identifier, so you are not able to close unresolved
tickets.” He also wanted to know “why are tickets that are raised in May only being
looked at now in late June?” He was further concerned about notations that said: “Old
36
Report and there was no clear procedure to close tickets and what need to be
investigated.” Mr. Hosey responded:
For the logRhythm change reports we have multiple times, both in person and via
email, stated what the procedure is and how to handle them. Unfortunately, it is not
acceptable to close a ticket if you don’t understand what to do. A reasonable person
would seek guidance rather than just close a ticket for the sake of closing it. As the
result of tickets being closed without investigation I had to get someone else in our
team to review and action them on Monday to ensure we did not have any
operational exposures.
Please ensure you follow the industry standard of not closing tickets without
investigation and/or proper resolution (including end client confirmation.)
Thank you.
A review by Mr. Hosey of the closed tickets submitted by the Grievor revealed
numerous examples of tickets improperly closed, delayed closings, and closing without
confirmation that the issue was resolved. At the hearing, the Grievor testified that if there
was a solution coming for a problem, the ticket could be closed. He saw “no reason to
keep the ticket open.” This appears to be the exact opposite of the instruction from Mr.
Hosey.
The following day, July 3, 2014, the Grievor was terminated by OPTrust. The letter
was written by Mr. Hosey and presented by him, as Ms. Pannu was on vacation. The
letter states:
Dear Emad:
Since early in 2014 we have tried to work with you to bring your performance up to
an acceptable level for your role as Systems Specialist. At the meeting held on June
12, 2014, we gave you a letter that set out the aspects of your work performance that
were unacceptable and needed improvement. You were given up to one month to
demonstrate progress toward improving your work performance.
However, your response at the meeting was a series of denials and immaterial
questions. We therefore provided you with a follow-up letter urging you to
reconsider your unwillingness to accept direction form management on improving
your performance.
37
Since June 12, 2014, we have monitored your performance closely, but we have
found no significant improvement in your productivity or quality of work.
Examples include:
- Missing the delivery date on fixing EdgeSight;
- Claiming that you had completed the Citrix part of implementing the new intranet
icon when you had not done so; and
- Attempting to delegate your tickets to the Help Desk or to consultants; long delays
in resolving tickets, and closing tickets before they are investigated.
As you have not made any progress towards meeting the requirements of the
Systems Specialist position, your employment at OPTrust is terminated effective
immediately ….
No evidence was presented that the examples listed in the termination letter did not
occur.
Ms. Pannu testified that management gave some consideration to moving the
Grievor to another position, but found nothing suitable. She stated that the IT division is
small and that the Grievor’s relationship with his co-workers was very bad. Further, in
Ms. Pannu’s view, providing the Grievor with additional time would not have made a
difference, as there was no improvement in his performance since January.
The Grievor testified that he was “not expecting” termination. After the June 12,
2014 letter, he was trying to change management’s “mind set.” He was closing tickets
and trying to satisfy management. He feels that he was given “no real chance”, “no fair
chance to demonstrate my ability to do the job.” He delivered on the PIP, per his
agreement with Ms. Pannu. In May, he was told he would have four months to improve,
yet he was terminated after just over two, and he did not understand why.
At the hearing, he admitted that he passed work to others but felt that he had no
choice given his heavy workload. It was his view that the Employer was expecting him to
produce 16 hours of work (his own and Mr. Ghori’s) in eight hours per day. He also
admitted he was very cautious with new applications and tickets because he was under “a
microscope” and did not want to make a mistake.
38
After the Grievor’s termination, in August of 2014, the Employer asked Mr.
Nguyen to assess the situation with Citrix, evaluate the deficiencies and make
recommendations. To do that, he did a lot of self-learning, on weekends and nights. It
took it “a solid month to learn Citrix.” He wanted to “master Citrix” so he could prove it
“could be administered properly.” He had assistance from ITWeapons and later, by
December 2014, from Citrix directly. The Grievor had discussed getting assistance
directly from Citrix with Mr. Gill at the time of hire, but that request was subsequently
denied for budgetary reasons and the Grievor had to rely on ITWeapons for assistance.
Mr. Nguyen found that Citrix at OPTrust was between one to two years out-of-
date (2 or 3 levels behind), and they had to update it before Citrix would assist. In
November 2014, he prepared a report, entitled “OPTrust Citrix Remediation”, which
provides a very detailed analysis of the existing environment and issues as well as a
remediation analysis and recommendations. It is fair to say that this was the type of
analysis that OPTrust wanted from the Grievor in the Employee Development Plan as
well as the PIP, but did not receive.
Also in November 2014, Mr. Nguyen produced a report regarding “Citrix Farm
Build”, outlining a completely new Citrix Farm to be built “from the foundation up and
tailored to specific Real Estate Group Requirements.” It is a very detailed report, with
specific tasks and milestones set out, and targeted completion dates. The time frames
were tight – it would be deployed to pilot users by November 24, 2014 and to all users by
December 1, 2014. The targets were achieved.
Finally, as previously noted, Mr. Nguyen, with assistance from ITWeapons,
successfully installed and configured AppSense. He testified that by early 2015, Citrix
had been stabilized and was now well-received by OPTrust employees. He testified that
Citrix “used to be like foul language at OPTrust” with a lot of “angry users.” That had
completely changed. His position as Network and Telecom Specialist has remained the
same, but he spends 20 to 30 percent of his time administering Citrix.
39
Reasons for Decision
1. Did the Employer have just cause to discharge the Grievor on non-culpable
grounds of inability to perform the job of Systems Specialist?
The Employer’s primary argument is that the Grievor was properly discharged on
non-culpable grounds for inability to perform the job of Systems Specialist. Both parties
recognize that the leading arbitral authority in this area is Re Edith Cavell Private
Hospital and Hospital Employees’ Union, Local 180, 6 L.A.C.(3d) 229 (Hope). The other
cases cited by the parties all cite to Re Edith Cavell, supra. Re George Brown College of
Applied Arts and Technology, 2010 CarwwellOnt11238, [2010] O.L.A.A. No. 566
(Bendel); Re Winnipeg Regional Health Authority- Midwives and C.U.P.E. Local 2348
(McDonald), 2014 CarswellMan 160, 243 L.A.C. (4th) 401 (Gibson); Re Purolator
Courier Ltd. and Teamsters Union, Local 928 (Cucchiara), 1992 CarswellOnt 1168, 24
L.A.C (4th)(Brent); Re The Regional Authority of Greater North Central Francophone
Education Region No. 2 and C.E.P.U., Local 777, 2011 CarswellAlta 1468, 211 L.A.C.
(4th) 35 (Jolliffe); Re IRLY Distributors Ltd. and Teamsters, Local Union 213, 2008
CarswellBC 2693 (Thompson); Re Independent Electricity System Operator and The
Society of Energy Professionals, 2009 CanLII 27268 (Albertyn).
The Edith Cavell decision sets out the criteria for non-culpable discharge for poor
performance, at par. 10:
It is not open to an employer alleging a want of job performance to merely castigate
the performance of the employee. It is necessary that specifics be provided. An
employer who seeks to dismiss an employee for a non-culpable deficiency in job
performance must meet certain criteria:
a. The employer must define the level of job performance required.
b. The employer must establish that the standard expected was communicated to the
employee.
c. The employer must show it gave reasonable supervision and instruction to the
employee and afforded the employee a reasonable opportunity to meet the
standard.
d. The employer must establish an inability on the part of the employee to meet the
requisite standard to an extent that renders her incapable of performing the job
40
and that reasonable efforts were made to find alternate employment within the
competence of the employee.
e. The employer must disclose that reasonable warnings were given to the employee
that a failure to meet the standard could result in dismissal.
These criteria enable an arbitrator to review the employer’s decision, if challenged, and
ensure fairness to the individual. As stated by Arbitrator Bendel in Re George Brown
College of Applied Arts and Technology and OPSEU, supra at par. 17: “[I]t is, of course,
only fair to the employee that he or she should know in advance what level has to be
attained to guarantee continued employment.”
In Re Independent Electricity System Operator and The Society of Energy
Professionals, supra, a decision by Arbitrator Chris Albertyn, the test was worded
somewhat differently though it is substantively quite similar. He stated, at par. 180:
The test for cases such as this is well described in O’Leary v. Treasury Board,
(2007) PSLRB 10 (Nadeau), at par. 287, as follows:
… The employer must show: that it has acted in good faith; that it has set
appropriate standards of performance, which were clearly communicated to the
employee; that it gave the employee the necessary tools, training and mentoring to
achieve the set standards within a reasonable time frame; that it warned the
employee in writing that the failure to meet the set standards by a reasonable set
date would lead to termination of his or her employment; and finally, that the
employee has failed to meet these standards.
Arbitrator Albertyn also considered whether the employer made reasonable efforts to find
alternate employment within the competence of the employee.
In analyzing the evidence presented in this case, I have considered all of the
criteria set out in both Re Edith Cavell, supra, and Re Independent Electricity System
Operator, supra. Applying these criteria to the evidence before me, I conclude, on the
balance of the evidence presented, that the Employer has met its onus on all of the
required elements.
1. The employer must define the level of job performance required and
communicate that to the employee.
41
The evidence establishes that the Employer defined the level of performance required
by the Grievor and communicated that to the Grievor. It did this through the 2013
Performance Appraisal, the Employee Development Plan, the January 28, 2014
assignment chart, and the Performance Improvement Plan.
In the 2013 Performance Appraisal, the Grievor’s manager clearly advised him
regarding the performance deficiencies that she had noted. She advised him that it was
not acceptable that he rely on “the ‘this is a management decision’ approach” but that
“[i]n a senior role the expectation is that the technical expertise is with the subject matter
expert.” He was advised that it was not acceptable to expect that “a solution will be
delivered by either the manager or other resources” and that he should “rely on his own
technical expertise in coming up with solutions.” He was advised that he “is expected to
create documentation sets and processes around his responsibilities” and that, to date, he
had done none. The fact that he did not agree that these deficiencies existed and believed
that he should have been rated “ER” in all categories does not negate the fact that the
Employer advised the Grievor that, in management’s view, his work performance fell
short and how it did so.
To assist with the documentation that OPTrust sought, Ms. Pannu created an
Employee Development Plan pertaining to “written communication/leadership and
initiative” – all of the areas in which he was rated as “NDS”. This document clearly set
out the “action steps” he was to undertake, including “to outline the current state of the
environment”, and the “measurement” for evaluation – “[t]he creation of a methodology
document depicting the OPTrust Citrix environment administration practices structured
logically.”
The Grievor claimed, at the time as well as at the hearing, that he did not understand
what was being required of him or see the need for it, as OPTrust already had
documentation that had been prepared by ITWeapons.
42
Ms. Pannu, in response to the Grievor’s stated lack of understanding, met with him to
explain more fully the Employee Development Plan. The evidence showed that she
explained exactly what she was expecting. I conclude, on the balance of the credible
evidence, that the Employer clearly defined the level of performance it was seeking in
regard to the Employee Development Plan.
The fact that the Grievor continued to “not understand”, under the facts of this case,
does not negate that the Employer’s expectations were fully communicated to him. The
fact that he did not understand the need for more current documentation is troubling in
and of itself since “[m]aintaining current documentation and diagrams for all servers and
software” as well as “documenting changes within either project lifecycles and timelines
or normal business growth/change requirements” is clearly part of the job, as set out in
the job description. It was also something that he had done in previous jobs, as set out in
his resume. It is a basic task in the information technology sector. As Ms. Pannu, and
Mr. Sean Turner, Manager Data Governance and Management, explained, documentation
is done to guide the IT Division so if a similar issue arises, the path to address it is known
and readily available. Rather than rely on an individual’s memory of what was done, the
documentation is used as a reference. Consequently, even though he did not understand
the need for the documentation or exactly what was expected, the Employer did explain,
clearly, what it expected.
The Employer also clearly set out its expectations in the chart attached to the
January 28, 2014 email. This was done to assist in prioritizing the Grievor’s time. It lists
six applications that the Grievor was required to place initially into DEV, and then move
to PROD, along with specific dates. The resource person for each task was also listed. In
my view, this document clearly defined the performance and tasks expected by OPTrust.
Similarly, the Performance Improvement Plan, issued to the Grievor on May 5,
2014, very clearly defined the tasks and expectations of the Employer. It sets out specific
tasks and deadlines. Again, the Grievor stated that he did not understand, and Ms. Pannu
met with him repeatedly concerning what was expected.
43
As noted before, the evidence shows that there was a very significant difference in
what the Grievor perceived Ms. Pannu expected in regard to the PIP (as modified by the
May 26th email) and what Ms. Pannu did. In my view, however, considering the entirety
of the situation – all of their interactions and discussions, and email exchanges over the
months between January and May and the problems that were happening with Citrix – the
Grievor’s interpretation of what the PIP required was unreasonable. On its face – and
another copy was sent to him on May 26, with new dates – the PIP requires so much
more than just basic documentation. The evidence suggests that the Grievor tried to
significantly narrow what was required of him and believed he had achieved that goal as
outlined in his email. Ms. Pannu’s response to his email was worded in a way that it
could be interpreted as an agreement to modify the PIP. The Grievor’s interpretation,
however, ignores the context in which Ms. Pannu testified the discussions took place –
the discussion of four technical parts of the PIP that were in dispute, not the entire PIP.
The Grievor did not refute this evidence. Consequently, in my view, given the context of
their discussions concerning the PIP, the Grievor should have known that the Employer’s
expectations for the PIP exceeded the documentation set out in the May 26th email. Based
on everything that had occurred, I cannot find that the Grievor’s interpretation of what
was required by the PIP was reasonable in the circumstances. On the evidence,
considered as a whole, I conclude that the Employer clearly set out its expectations
concerning the PIP.
The Grievor was also clearly advised regarding the Employer’s expectations
concerning his “soft skills”. In Re Independent Electricity System Operator, supra, the
grievor there, a Senior Engineer/Officer-Systems, had remarkably similar responsibilities
as the Grievor here: “to provide technical expertise and leadership in information
technology systems; to provide technical support to customers as well as to internal staff;
to be involved in project management and strategic planning; to manage the evolution of
existing IT systems, including maintaining improvements and correcting problems” and
to “document reference a number of technical areas that fall within his responsibility.”
The problem was not with his “technical skills”; instead, at par. 27, the arbitrator found
44
that “[t]he difficulties that arose were all in the soft skills areas – communication with his
supervisor and others, leadership, team work, punctuality in completing the work and in
keeping all informed.”
The Grievor, here, had the same issues. On the evidence, I conclude that he was
informed of the Employer’s expectations concerning these “soft skills.” The 2013
Performance Appraisal, and Ms. Pannu’s discussions with him, advised him that, as the
subject matter expert, he needed to rely on his own technical expertise for finding
solutions to the problems that were occurring in Citrix, rather than expecting solutions
from management or others. He was repeatedly advised that he had to take more
“leadership” and “ownership” of the Citrix issues. He was repeatedly advised that he
needed to prioritize and get his work done on time, and clear deadlines were set. He was
advised, in regard to tickets involving Citrix, that he was expected to handle them, not
assign the work to others.
The PIP also clearly sets out expectations in this regard, as did the May 5, 2014 letter.
That letter states in relevant part:
The Systems Specialist is an integral senior role to our group, and my expectation is
that the senior level skill set described in your job description should be used when
performing the required duties and tasks. This includes prioritizing your own work
assignments based on business requirements and within published deadlines, as
well as using a pro-active approach to assess issues and research.
Consequently, I am persuaded that the evidence establishes that the Employer clearly
set out its expectations concerning the Grievor’s work performance and communicated
them to the Grievor.
The cases cited by the Union are, in my view, distinguishable. In Re George Brown
College, supra, the Board determined that the expectations set out by the employer were
“too vague.” In Re Winnipeg Regional Health Authority, supra, not all of the Employer’s
concerns were raised with the grievor prior to her being placed on an indefinite unpaid
leave. In Re Regional Authority of Greater North Central Francophone Education
45
Region No. 2, supra, the Employer did not communicate a reasonable measure of job
performance but merely told the grievor that she had to immediately improve her French
language skills. In contrast here, I conclude, on the balance of the evidence, that the
Employer did define and communicate to the Grievor the standards it expected.
2. The Employer must show it gave reasonable supervision and instruction to
the employee and afforded the employee a reasonable opportunity to meet
the standard.
The evidence is very clear that the Employer, through Ms. Pannu, provided the
Grievor with reasonable supervision and instruction. They had regular meetings and
discussions. Ms. Pannu was available for one-to-one instruction and advice. She also
prioritized his work. The Grievor was also provided technical assistance from IT
Weapons. While he may not have been given direct Citrix support access, there was no
evidence that the support from IT Weapons was insufficient.
The Union questions whether the Grievor was provided with sufficient feedback on
his failure to meet the standards. The Grievor testified, for example, that he never
received feedback on the documentation he provided in regard to the PIP. Consequently,
he thought the documents fully met the Employer’s expectations as set out in the May
26th emails. He was expecting “different feedback” at the meeting on June 12, 2014.
Ms. Pannu testified that she did advise the Grievor that his documentation lacked
depth and analysis, and that he did not understand why she found it lacking. The
Employer’s view of the documentation he provided is also set out in the June 12, 2014
letter, which states: “The quality of the documentation that you have produced is below
the level that we expect for your position.”
In this regard, I prefer the testimony of Ms. Pannu. She regularly met with him
concerning his performance – to the point where, at the end, the Grievor felt that he was
“under a microscope.” I find it more likely than not that Ms. Pannu discussed the
documents provided by the Grievor in May, pursuant to the PIP. She may not have done
46
so in writing, but she did so verbally. I credit her testimony that the Grievor did not
understand why she found the documents lacking: it is exactly what he testified to at the
hearing. She testified that she could not recall if she discussed the one submitted on June
13, as she was leaving shortly for her vacation. But I conclude that she did convey her
feedback to the documents presented in May, and that she generally provided him with
reasonable supervision, feedback and instruction concerning the Employer’s
expectations.
The Union also disputes whether the Grievor was given a reasonable opportunity to
meet the standards expected. It argues that on May 5, 2014, he was give “four months”
to show improvement. On June 12, 2014, just over a month later, that period was
shortened to “no later than one month”. Then, just 13 business days later, on July 3, 2014,
he was terminated. In the Union’s view, he was not provided a reasonable opportunity to
meet the standard. It submits that the 2013 Performance Appraisal was “not a bad” one,
and to go from that to termination in just over five months was unreasonable. The
Grievor, likewise, testified that he believes that he was not given a fair chance to show
that he could perform the job
There is no question that the Employer shortened the “four month” time frame it had
stated in the May 5, 2014 letter which accompanied the PIP. The four-month time-frame,
however, was not a guarantee of four months and there is no provision in the collective
agreement which ensures a set time period. The issue, therefore, is whether the Employer
provided the Grievor with a reasonable opportunity to meet the standards for the job. On
the evidence presented, I conclude that it did.
The Grievor’s performance issues did not arise in May. They began at the end of
2013, as the Citrix introduction was winding down and significant problems with Citrix
had emerged. Ms. Pannu’s mandate, when she became the Grievor’s manager in October
2013, was to “deliver the Citrix project.” She found significant deficiencies in the
Grievor’s approach to addressing these problems, many of which were set out in the 2013
Performance Appraisal given to the Grievor on January 28, 2014. That appraisal was
47
accompanied by the Employee Development Plan as well as a list of specific
deliverables. On April 29, 2014, Ms. Pannu and Mr. Hosey met with the Grievor to
provide their feedback. On May 5, 2014, he was given the PIP with four specific
assignments. At the same time, he was relieved of all other work except the Citrix ticket
backlog and the PIP, so he could focus on those tasks. Consequently, the Grievor’s
opportunity to demonstrate to Ms. Pannu that he could truly do the Systems Specialist job
began on January 28, 2014, not May 5. The Employer, throughout that the period
between January 28, 2014 to July 3, 2014, gave him a reasonable opportunity to improve
his performance.
Ms. Pannu testified that the period was shortened because the Grievor’s performance
had not improved at all, and in fact, was deteriorating and negatively impacting the IT
team. She was also troubled by his attitude. Rather than accepting the feedback and the
opportunity to demonstrate his abilities, he disagreed with her assessments and resisted
the Employer’s expectations. She testified that she did not believe that providing him
additional time would have made a difference
I concur that the Grievor’s refusal to accept or understand the Employer’s concerns
does indicate that additional time would not have made a dif ference. At every step, the
Grievor did not agree with Ms. Pannu’s assessment of his performance. He believed he
rated “ER” in all categories, and fully met the Employer’s expectations. He believed that
he fully complied with the PIP, and did not understand how he did not comply. This
disconnect between the Employer’s expectation and the Grievor’s perception of his own
performance explains Ms. Pannu’s observation that she was making “no traction” with
the Grievor in terms of his performance.
The Union argues that the Grievor had previously demonstrated that he took the
Employer’s concerns regarding his performance seriously, noting that he had taken the
VMWare course to expand his knowledge and joined Toastmasters to improve his public
speaking ability. The Grievor’s doing so was indeed commendable. But both of those
48
undertakings related to his first performance appraisal in 2012. The Grievor did not as
fully embrace the far more substantive issues raised by Ms. Pannu.
Under the facts presented, I agree that additional time would not have made a
difference, and that the Grievor was provided a reasonable opportunity, in the period
between January 28 and July 3, 2014, to meet the Employer’s expectations.
3. The Employer must establish an inability on the part of the employee to meet
the requisite standard to an extent that renders him incapable of performing
the job.
In assessing this factor, it is important to consider the nature of the Systems Specialist
job. As set out in the job description, it is a senior level technical position. The Grievor
was hired to be OPTrust’s “subject matter expert” in regard to Citrix. It is not an entry-
level job, or even a mid-level job. When problems developed with the implementation of
Citrix, the Employer needed him and expected him to take both leadership and ownership
of the problems, and solve them. The Grievor failed to do so, and consequently, I
conclude that the Employer did establish an inability on the part of the Grivor to meet the
requisite standards.
The gap between what the Employer wanted, and what the Grievor provided, is most
clearly seen in his reaction to the Employee Development Plan and the PIP. The
Employee Development Plan, essentially, was a direction to the Grievor to review the
current state of Citrix, analyze the issues that were happening, research and recommend
solutions, as well as to document the process for moving applications from development
to production. His reaction was to try to get Ms. Pannu to clarify what she expected. He
wanted the “exact ask.” It is undisputed that he never created or provided this document.
The same is true for the PIP, only more so. Three meetings were required to discuss
what the Employer’s expectations were because the Grievor wanted to know the
Employer’s “exact ask.” This, in my view, sums up the core problem in a nutshell. While
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the Grievor wanted the Employer to tell him explicitly what it was seeking, to be told
exactly what the Employer wanted to be done, the Employer was looking for the Grievor
to take leadership and ownership of the issues – to assess what was wrong, analyze it,
research potential solutions and make recommendations, and then implement the course
selected. This was the big divide, and despite many efforts by the Employer to get the
Grievor to do this, he did not.
The documents created by the Grievor in relation to the PIP were basic, generic,
“high-level” documents, containing nothing specific to OPTrust. They stand in sharp
contrast to the documents created by Mr. Nguyen in the fall of 2014. The Union argues
that the issue is not whether someone else can do the job better, but whether the
Employer established that the Grievor was unable to do the job. I agree with that
assertion. However, the stark difference in the quality of the documents demonstrates
that the Grievor was unable to do the job at the level required.
The Grievor initially succeeded in the Systems Specialist role while the project was
still in the development stage with IT Weapons, though problems emerged at the end of
that process. When IT Weapons’ role was done and the Grievor became responsible for
completing the roll-out as well as administering and maintaining Citrix, he was unable to
do it at the level required of the position.
The situation was exacerbated by the departure of Mr. Ghori, the other Systems
Specialist. Mr. Nguyen testified that because the Grievor was “too busy” to help with
Tier 2 tickets involving systems, he went to Mr. Ghori. When Mr. Ghori left, the Grievor
resisted taking on the ticket role, deflecting work back to the Tier 1 employees as well as
to Mr. Nguyen and Mr. Nelson who volunteered to help out. The Grievor’s handling of
tickets became a significant concern of the Employer, and a source of frustration within
the IT group.
The evidence does not support the Grievor’s contention that with Mr. Ghori’s
departure, he was unfairly expected to do both his own job and that of Mr. Ghori. It does
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not support the assertion that he was expected to do 16 hours of work every day. His
overtime in January 2014 was ½ hour. By February, Mr. Nguyen had volunteered to help
out, followed by Mr. Nelson, and the Grievor only worked 6.5 hours of overtime. The
Grievor testified that he was directed by Ms. Pannu to do Mr. Ghori’s work in January
2014, rather than Citrix. This was denied by Ms. Pannu, and all of the emails contradict
that claim. The emails, as well as the Employee Development Plan, all refer to Citrix
work that Ms. Pannu was expecting of the Grievor. I have no doubt that Mr. Ghori’s
departure increased the Grievor’s workload, as it did the others in the group. There was a
short period of time that the Grievor was the only Systems Specialist at OPTrust. But
that was the not the reason that the Grievor was unable to perform to the level required.
The fundamental reason was the Grievor’s reluctance/unwillingness to embrace the
leadership role required of the Systems Specialist, and instead seek to be told the
Employer’s “exact ask.”
The evidence is clear that the Grievor did not meet the performance standards
reasonably expected of him. He either did not complete the tasks assigned at all, or on
time, or at a satisfactory level; he did not prioritize his work; he deflected work to others;
he failed to follow required practices in regard to tickets; his productivity was low; he did
not take leadership and ownership of Citrix, as required of the Systems Specialist.
This case is remarkably similar to Re Independent Electricity System Operator, supra.
In that case, the grievor had successfully worked for approximately two years working
with the Tivoli computer system. But after that system was to be phased out, he was
transferred to another division within IT. While the former job “was primarily to attend to
day-to-day problems that arose on the various computer systems”, his new job was quite
different. As stated by the arbitrator at par. 45:
[The new position] was primarily involved with the evolution of the computer
systems, their upgrades, and tier two support to the IT & I operations. Those in his
section had to be subject matter experts (SMEs), knowing most of the systems.
[The job] was not to monitor the computer system day-by-day, but to find better
systems or better ways of using the systems. …
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The arbitrator concluded, at pars. 186-198, that, overall, the grievor “did not meet the
performance requirements reasonably expected of him” by the Employer. He was unable
to prioritize his work; he was tardy in the completion of his work; in terms of documents
“[h]e did not take charge of the document production, as he should have. He did not
establish clearly at an early stage what was needed” and “at no stage t[ook] charge and
manag[ed] the documents as a senior employee at the MP5 level should have done.” “The
Grievor did not exemplify any particular leadership qualities…” It was necessary for his
manager “to micro-manage his activities” which “was not sustainable in the long term.”
By the time of his termination, “there was insuff icient evidence that [the grievor] would
be capable of managing his tasks the MP5 responsibilities without continued close
supervision.” The arbitrator further stated, at pars. 197-198:
The Employer was looking for [the grievor] to show initiative and leadership and to
manage projects. …They wanted him to be making inquiries of the IT & I
department – his clients- to determine what developments were needed, what
systems needed enhancement, what functions were working well and what poorly.
They saw none of this type of leadership from him. They hoped he would play a
role in the design of appropriate technology for the IESO, but he did not.
The conclusion I reach from the above is that…[the grievor] was not able to
demonstrate the skills and competencies required of a person working at the MP5
level. Although there was no specific incident or act of misconduct, over the period
of [the grievor’s] employment it became apparent to the Employer that [the grievor]
was not going to meet the standards expected of him at an MP5 level. I conclude
from the above, that the Employer had just cause to remove [the grievor] from the
MP5 level.
Unfortunately, the same conclusion applies here.
4. Were reasonable efforts made to find the Grievor alternate employment
within his level of competence?
Ms. Pannu testified that management considered other positions but could not think
of a place for the Grievor within the IT Division, particularly in light of his poor
relationships with other IT staff. The Union submits that the Employer failed to satisfy
this requirement. It submits that the Employer did not offer him another job because it
wanted him gone.
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The IT Division is a relatively small group. Prior to closing arguments, neither the
Union, nor the Grievor, identified any positions that the Employer should have
considered but did not. In closing argument, the Union suggested that the Employer
should have moved him to the Helpdesk, a lower-rated position.
In Re Independent Electricity System Operator, supra at par. 149, the arbitrator stated
that management had considered moving the grievor to another area of IT but “[t]his was
rejected because the meeting concluded that transferring [the grievor] to another area in
the organization would not solve the problem; it would just move the problem and he
would not succeed in another area in another position.” They also considered demoting
him, “but the same concerns obviated that alternative.” He further stated: “Although there
does not appear to have been a concerted investigation or consideration of what
alternative positions might have been suitable for [the grievor], management felt that his
poor performance in key areas of responsibility would have made a demotion
unworkable.”
In his analysis, at pars. 220-221, the arbitrator found, on the evidence, that the
Employer satisfied its obligation to consider alternate positions. A number of alternatives
were suggested by the Union, but the arbitrator was convinced by the employer’s
evidence that the grievor “was not qualified for these jobs.” He determined that the
grievor’s skills were “not easily transferable as might be the case in an industrial setting
where the obligation to provide alternative work is more easily satisfied.”
Again, I find the same conclusion applies here. The Employer considered alternative
positions, albeit briefly, but could not think of a place for him, particularly in light of the
fact he was not well regarded by other IT staff. The Grievor disputed this, and the Union
asserted that the Employer only presented the testimony of one employee, Mr. Nguyen.
The evidence of IT staff unhappiness, particularly the Helpdesk, with the Grievor
went beyond the testimony of Mr. Nguyen. Ms. Pannu testified about the numerous
complaints she received from staff concerning the Grievor, and those complaints are
53
reflected in the emails. She addressed these concerns with him, but he continued to
assign work to others, incurring their frustration. Further, other than the Grievor’s
assertion that he got along well with co-workers, there was no corroborating evidence
presented of that claim. In these circumstances, I conclude that the Employer’s decision
not to place him in the Helpdesk was reasonable, and there is no evidence that any other
position would have been suitable.
The situation here is very different than in Re Purolator Courier Ltd., supra. In that
case, the grievor previously had successfully done the job of an “afternoon” courier, but
was unable to meet the standards of a “morning” courier and was terminated for that
inability. The arbitrator found all of the criteria set out in Re Edith Cavell to have been
met, except for whether “reasonable efforts were made to find alternate employment
within the competence of the employee.” Arbitrator Brent found at par. 27 that “[q]uite
clearly there were jobs within the grievor’s competence” available such as the
“afternoon” run. The same is not true here.
5. Reasonable warnings were given to the employee that a failure to meet the
standard could result in dismissal.
The evidence is clear that the Grievor was repeatedly warned that failure to meet the
standards could result in dismissal. This was evident from the May 5, 2014 letter and
PIP, as well as the June 12 and June 13, 2014 letters. The Grievor understood that his job
was on the line should his performance not improve.
The Union asserts that the Employer failed to utilize progressive discipline, and that
the only “discipline” on record was a written warning issued on June 12, 2014. It submits
that the Employer improperly jumped from a written warning to discharge, without any
intervening discipline.
In Re Assiniboine Community College and Manitoba Government and General
Employees’ Union (Adjoda Bridgemohan), 2005 CarwellMan 926 (Werrier), the grievor,
54
an instructor, went from a one-day suspension for insubordination to discharge for
inability to meet the teaching standard required. The Union argued that the Employer
failed to impose progressive discipline. The arbitrator acknowledged that progressive
discipline was not followed, but instead looked at the purpose of progressive discipline –
to ensure “that an employee has been given notice of concerns about workplace
performance and/or behaviour, and the potential liability if the problems are not remedied
or reoccur.” He continued at pars. 221-222 (emphasis in original):
In a workplace such as a college or university, I am not convinced that it was
necessary to have a long progression of various forms of discipline leading to
termination if, in fact the employee has been made aware of his or her deficiencies
and the employee has been afforded time to improve and provided with remedial
assistance. For instance, a lengthy suspension which is usually the last step before
dismissal may not serve any useful purpose in this employment setting.
After a review of all the evidence in this case, I am satisfied that the Grievor was
made aware of his deficiencies, was provided assistance, and was given time to
improve his performance. … Any reasonably intelligent instructor in his position
would, by any stretch of the imagination, be aware that his future employment was
in serious jeopardy; and I am satisfied based on all the evidence that the Grievor
was in fact aware that his future employment was hanging in the balance.
In this case, I am also satisfied that the Grievor was made aware of his performance
issues and was warned that his future employment was at risk. The May 5, 2014 letter
states: “If you do not demonstrate significant improvement within the next 4 months, we
may have to reconsider your employment status as Systems Specialist at OPTrust.” The
June 12, 2014 letter states: “If you do not show improvement in your productivity and
quality of work in this period such that there is reason to believe that you will meet the
requirements of your position, we will have to consider the viability of your continued
employment at OPTrust.” I am satisfied on the evidence that, in fact, the Grievor was
warned that his job was at risk should he not improve.
6. Did the Employer act in good faith?
The Union asserts that the Employer did not act in good faith. It cites to Mr. Hosey’s
question during the June 12, 2014 meeting to Director of Labour Relations Jane Rennie,
55
“can’t we get rid of him today?” It also relies on Mr. Hosey’s questioning the Grievor, in
March 2014, concerning his prior employment at Sun Life. It submits that management
had made up its mind to terminate the grievor without giving him a fair chance to
improve.
The comment by Mr. Hosey does reveal a predisposition, as of June 12, 2014, to
terminate the Grievor. But that does not mean that the Employer acted in bad faith. By
June 12, 2014, management had been trying to work with the Grievor since at least the
end of January to improve his performance, without any show of improvement. The
Grievor had repeatedly pushed back on management’s requests, including the PIP, and
management was clearly frustrated with the Grievor. Problems continued with Citrix
which were not being resolved. Other IT staff were unhappy with the Grievor and the
Citrix situation. Despite Mr. Hosey’s comment, the Grievor was not terminated on June
12, but given additional time to demonstrate improvement. The very next day, however,
the Grievor submitted another document in connection with the PIP which clearly failed
to meet the Employer’s expectations. His work with regard to tickets, which the Grievor
felt was excellent, was also below expectations. While the Grievor stated that he closed
“more tickets than anyone else”, from the Employer’s perspective, many of the tickets
were improperly closed and failed to follow basic industry standards. Other problems
occurred after June 12, which were noted in the termination letter. None of those items
were refuted by the Grievor. In these circumstances, I cannot conclude, despite Mr.
Hosey’s comment, or his comments about Sun Life in March, that the Employer did not
act in good faith and give the Grievor a real opportunity to improve.
Consequently, I conclude that all of the criteria set out in Re Edith Cavell, supra, have
been met, and the Employer had just cause to terminate the Grievor’s employment.
Because of this ruling, there is no need to address the Employer’s alternative arguments,
that it had just cause on the basis of culpable misconduct or that, if it did not have just
cause, the Board should order damages in lieu of reinstatement.
2. Did the Employer have just cause for the June 12, 2014 written warning?
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Based on the evidence set out in this Award, I conclude that the Employer did have
just cause to issue the written warning on June 12, 2014.
3. Did the Employer fail to provide the Grievor with a harassment-free
workplace?
The Union asserts that the Employer’s performance management led the Grievor to
feel singled-out. In addition, the Grievor believed that Mr. Hosey’s inquiries concerning
his prior work, his desire to “get rid” of him, and Ms. Rennie’s questioning whether he
had difficulties accepting supervision from Ms. Pannu because she was female, were
personal attacks. The Union does not suggest that the Employer’s actions were Human
Rights Code-based, but asserts that they made the Grievor feel harassed.
The Employer submits that management has the right to manage the workforce and
that supervision, even close supervision when an employee is experiencing performance
issues, does not constitute workplace harassment. It relies on the definition of
“workplace harassment” under the Occupational Health and Safety Act, R.S.O. 1990,
c.O.1 which defines it to mean “engaging in a course of vexatious comment or conduct
against a worker in a workplace that is known or ought reasonably to be know to be
unwelcome.” It also cites to a new amendment, which takes effect on September 8, 2016,
which states: “A reasonable action taken by an employer or supervisor relating to the
management and direction of workers or the workplace is not workplace harassment.”
Although it recognizes that this amendment is not yet in effect, it submits that it reflects
the current state of the jurisprudence.
In support, it cites to Re Amodeo v. Craiglee Nursing Home Ltd., 2012 CarswellOnt
11897 (OLRB). In that case, Vice-Chair Kelly determined that a supervisor shouting at
the worker and issuing a written warning, or reminders to document did not constitute
workplace harassment, stating at par. 12: “The workplace harassment provisions do not
normally apply to the conduct of a manager that falls within his or her normal wo rk
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function, even if in the course of carrying out that function a worker suffers unpleasant
consequences.”
It also cites to Re Misericordia General Hospital and Misericordia Nurses, Local 2
(Allen), 2006 CarswellMan 896 (Peltz), where the arbitrator dismissed a harassment
grievance. He concluded that the Union failed to meet its onus to establish:
(1) the absence of any legitimate work purpose for the impugned
conduct, and
(2) on an objective basis, an intimidating, humiliating or offensive
work environment.
He also ruled, at par. 124, that “[i]n considering a harassment claim, an objective
standard is to be applied, not the subjective impressions of the alleged victim.”
Applying these standards to the facts in this case, I conclude that the Union failed to
meet its onus. The Employer had a legitimate workplace purpose to review the Grievor’s
work performance and seek to improve it through close supervision, the Employee
Development Plan and the PIP. Although Mr. Hosey’s comments may have felt like a
personal attack by the Grievor, Mr. Hosey did not terminate the Grievor in either March
or June. Additional time was provided to see if improvement was shown. The Director of
Labour Relations inquiry into whether the Grievor had an issue with Ms. Pannu’s gender
was a legitimate inquiry given the Employer’s obligations under the Human Rights Code.
On an objective basis, I cannot conclude that the Union met its onus to establish that the
Employer created an intimidating, humiliating or offensive work environment.
Conclusion:
This case is very unfortunate. The Grievor is a very pleasant man and clearly wanted
to return to his job at OPTrust. In the IT world, a unionized position with a pension is a
rare thing. He clearly has significant IT knowledge. However, I conclude, on the balance
of the credible evidence, that the Employer sustained its onus in this case. The Employer
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clearly defined the level of performance required and communicated those standards to
the Grievor. He was provided reasonable supervision, instruction, and guidance to assist
him in meeting those standards. He was provided with a reasonable opportunity and time
to improve. He was warned that failure to significantly improve his performance co uld
lead to his termination. The evidence establishes that he was not able to perform his work
at the standard expected. The Employer gave consideration to alternative positions. In
these circumstances, the Employer had just cause to terminate the Grievor’s employment.
His termination grievance must be denied. For the reasons set out above, his other
grievances must also be dismissed.
Issued this 10th day of June 2016.
Randi H. Abramsky
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Randi H. Abramsky, Arbitrator