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HomeMy WebLinkAbout2001-1728.Filho.03-08-27 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1728/01 UNION# OLB544/01 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Control Boards Employees' Umon (FIlho) Grievor - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION Mr Craig Flood Koskie Minsky Barnsters and SOlICItorS FOR THE EMPLOYER Mr Michael Horvat OgIlvy Renault Barnsters and SOlICItorS HEARING September 18 October 2, December 6 11 12,2002 January 3 Apnll0 & 17 June 16 July 15 2003 2 AWARD The Umon has gneved the dIsmIssal of Ramumer FIlho the gnevor from hIS posItIOn as a probatIOnary Programmer Analyst. The gnevance alleges that the dIsmIssal vIOlates ArtIcle 264 whIch provIdes "The employer shall not dIscIplIne or dIsmIss an employee wIthout Just cause" Facts A. Hiring In November 2000 the Employer posted for two Programmer Analyst posItIOns In the LOgIStICS Department at the Durham warehouse, at the Systems Officer 3 level AccordIng to then Manager LOgIStICS Systems, Jeffrey LeIth, management was seekIng a mId-level Programmer Analyst wIth sIgmficant expenence to come In and assume the responsIbIlItIes of the Job The Job was to assIst the team on the "B" system at the Durham warehouse The "B" system provIdes overall control and accountabIlIty for the Durham warehouse whIch receIves 90% of the products shIpped Into Ontano and serves 60% of the LCBO's 600 stores It IS a DIgItal Alpha 2100 operatIng system under VMS wIth programmIng In Cobol and Macro ApplIcatIOns, IncludIng Master File MaIntenance ReCeIVIng, Inventory Control, Order ProcessIng and ShIppIng, are developed and maIntaIned by the LOgIStIC Systems Department. That department consIsts of Semor Systems Analyst Joyce Chu, who IS the Team Leader and two Program Analysts There are also some contractors workIng on a proJect basIs The postIng, whIch Mr FIlho dId not see, descnbes the posItIOns avaIlable as follows 3 The InformatIOn Technology DIvIsIOn has dynamIc opportumtIes for InnOvatIve professIOnals seekIng challengIng work In programmIng, desIgn, development and ImplementatIOn In vanous envIronments (MVS UNIX, and VMS) As part of the LOgIStICS Systems Group you wIll be Involved In program and file desIgn, development and testIng, ImplementatIOn planmng and executIOn, and related support, Involvement In the maIntenance of eXIstIng systems, the ImplementatIOn of new systems, problem determInatIOn and resolutIOn. The qualIficatIOns Included "a cOmbInatIOn of post -secondary educatIOn In computer sCIence/programmIng and progressIve related expenence" The postIng contInues QualIficatIOns Include proven expenence maIntaInIng and enhancIng LOgIStICS Systems ExtensIve expenence In Cobol, DB2, CICS and JCL on the MVS platform and/or VMS expenence In Cobol and DCL Umx, Oracle, and Developer 2000 As well, excellent problem solvIng, Interpersonal and commumcatIOn skIlls are reqUIred. A proven abIlIty to orgamze and schedule multIple concurrent tasks to meet commItments IS reqUIred. Mr Filho testIfied that he had been provIded wIth a "Job descnptIOn" from the headhunter who contacted hIm about the posItIOn, although not In the form of the postIng. Mr FIlho was selected for an IntervIew on the basIs of hIS resume His resume demonstrated substantIal educatIOn and expenence In programmIng and analysIs IncludIng four years of expenence In Canada and approxImately two years expenence In BrazIl It lIsted sIgmficant expenence In Cobol as well as In program analysIs, desIgn, codIng, testIng and acceptance, ImplementatIOn and maIntenance Mr FIlho was provIded wIth further InfOrmatIOn about the Job from both Mr LeIth and Ms Chu dunng the IntervIew process Ms Chu explaIned to hIm that the "B" system used a legacy dIgItal VMS operatIng system, whIch IS qUIte dIfferent than an IBM operatIng system, and that although he knew Cobol, he would have to learn the EdItor Job Control Language and the envIronment set-up She also explaIned that It was a small team In LOgIStICS and that all employees were expected to work Independently and expected to perform In all phases - programmIng, testIng and analysIs 4 Ms Chu testIfied that In the IntervIew Mr Filho demonstrated a lot of Interest In learmng a new envIronment, and assured her that he would have no problems learmng a new system She testIfied that she was Impressed that he would work hard and be able to learn the VMS system AccordIng to Mr LeIth, two other employees had made a sImIlar transItIOn wIthout dIfficulty On cross-eXamInatIOn, the gnevor acknowledged that Mr LeIth told hIm that the posItIOn was "not a Jumor posItIOn" and that the Company expected "more than basIc skIlls" He understood that the operatIng envIronment was dIfferent than hIS background, but felt that he could learn It WIth some traInIng. On May 7 2001 Mr FIlho was offered the posItIOn of Programmer Analyst, SO 3 In the LOgIStICS Department, commencIng May 28 2001 The letter advIses that he would "be reqUIred to complete a sIx-month probatIOnary penod." Mr FIlho testIfied that he understood that the purpose of the probatIOnary penod was to show performance and to see If he was capable of dOIng the Job B. The Orientation On May 28 2001 the gnevor first met wIth Mr LeIth. Mr LeIth explaIned that Mr FIlho would be workIng wIth Ms Chu, as Team Leader and that Ms Chu would "explaIn the ropes and reqUIrements" He told Mr FIlho that there was no set penod for on entatIOn. Rather assIgnments would progress based on when he felt confident and comfortable 5 Mr LeIth explaIned the LOgIStICS Department and ItS relatIOnshIp to the rest of the InformatIOn Technology DIvIsIOn to Mr FIlho and told hIm that he would need to understand the LCBO's orgamzatIOnal structure, ItS networks and the operatIng reqUIrements of the networks After meetIng wIth Mr LeIth, Mr Filho met wIth Ms Chu. She testIfied that she Introduced hIm around, IncludIng to Angela Xue, the other Programmer Analyst In the LOgIStICS Department. That IntroductIOn may have occurred the folloWIng week SInce Ms Xue was not In the office that week, but there IS no questIOn that Ms Chu dId Introduce Mr FIlho to others In the department that first day IncludIng Sautong Chang, Team Leader for the "A" system She showed Mr FIlho where to SIt and hIS computer and then sat down wIth hIm, at her work area, to explaIn the Durham systems She provIded hIm wIth a copy of a document entItled "LIqUor Control Board of Ontano Durham Warehouse "B" System OvervIew" It explaIns all of the computer systems used at the Durham warehouse and how they Inter-relate, all of the sub-systems and applIcatIOns, and detaIls about them. She also provIded hIm wIth a copy of the sub-system and applIcatIOn flow charts She testIfied that she went through each page of these documents wIth hIm, In detaIl Ms Chu testIfied that she spent the first week of Mr Filho's onentatIOn gOIng through thIS InfOrmatIOn and demonstratIng the vanous applIcatIOns Dunng the first week, she also Introduced the EdItor whIch IS used to edIt a program, and demonstrated how to use It USIng the keypad and on-lIne edItor There IS no mouse used wIth the EdItor She testIfied that she Introduced all of the thIngs that she knows are useful for a Programmer Analyst regardIng USIng the EdItor Later Ms Chu Introduced other lIbranes to Mr FIlho copybook, source lIbrary Job control language lIbrary and procedure lIbranes, and explaIned how to use them to execute a program She explaIned how to prepare a senes of InstructIOns wntten In Job control language She also 6 brought to hIS attentIOn detaIls about theIr specIfic VMS envIronment and Introduced hIm to applIcatIOns specIfic to theIr envIronment - batch, on-lIne, and detach. For each one, she dId a demonstratIOn and explaIned them. She later went through secunty on the techmcal sIde, IncludIng the dIfferent levels of secunty for the system, group Job and process She explaIned that she spent tIme WIth hIm on thIS because there IS no such thIng In an IBM envIronment, yet It IS Important In a dIgItal envIronment. She also spent tIme explaInIng the commands reqUIred for each level and how to show It on-screen and create a "logIcal" set-up Ms Chu testIfied that she also explaIned to hIm the Importance of testIng. Ms Chu testIfied that programmers stay wIthIn a test envIronment so as not to Interfere wIth productIOn. At the begInmng of the second week of onentatIOn, Ms Chu stated that she started to gIve hIm examples of vanous programs, and encouraged hIm to practIce USIng the EdItor to change the programs She showed hIm how to compIle a program, USIng the Cobol compIler as well as the vanous dIrectones and lIstIngs he would need. AgaIn, because thIS area was dIfferent than IBM, she spent tIme on It WIth the gnevor She Introduced hIm to vanous optIOns wIth the compIler (wIth lInk, wIthout lInk) and the debugger She stated that she encouraged hIm to start to edIt programs - compIle, lInk, run and see the results Also dunng the second week, Ms Chu gave the gnevor three sample programs from Brand MaIntenance - a batch program, an on-lIne program wIth screen dIsplay and a detach process - all of whIch are used on a dally basIs She pnnted them out and walked hIm through them. She explaIned how to Input files, output files, and change programs USIng LCBO's conventIOns She testIfied that she spent two days wIth hIm on thIS, and then encouraged hIm to go through It, by 7 hImself, to make changes and see the results She told hIm to come back wIth any questIOns that he had. Other areas of InstructIOn Included the dIgItal eqUIvalent of Job control language, DCL - dIgItal control language, whIch IS done on-screen. She showed hIm how to use DCL and explaIned that addItIOnal InformatIOn was avaIlable on-lIne, through menus, or by askIng her or Angela Xue Ms Chu had assIgned Angela to assIst Mr Filho when he had questIOns and Ms Chu was not avaIlable Mr FIlho testIfied that Angela was very helpful to hIm and that he preferred askIng her questIOns because she was at the same level rather than Ms Chu. On Monday June 4 2001 Mr FIlho sent an e-maIl to Mr LeIth, who had asked for Mr FIlho's VIews of the "pros and cons" to date He wrote Hi Jeffrey Here are some of the Pros & Cons I've found so far Pros - From what I have learned from the proJect, It seems very stable - The people and envIronment are mce and fnendly - The Company IS very orgamzed (booklets for benefits, to get access to the network, maInframe, access card were very fast ) - It's good havIng a cafetena on-sIte Cons - The coffee IS not free Ms Chu testIfied that the normal onentatIOn penod IS between two to two and one-half weeks She explaIned that thIS usually provIdes sufficIent tIme to go through the specIfics of the LCBO's envIronment and ItS busIness applIcatIOns ThIS IS because a Programmer Analyst IS expected to come to the Job wIth programmIng and desIgn expenence and know how to find thIngs Mr FIlho's onentatIOn took approxImately four weeks 8 Ms Chu explaIned that Mr FIlho had dIfficultIes, partIcularly wIth the EdItor He had dIfficulty USIng It and dId not lIke USIng It. When he complaIned about It, she told hIm that there was nothIng she could do SInce It was what they used to edIt programs But she spent more tIme WIth hIm, demonstratIng agaIn how to use the keypad for commands He dId not lIke USIng the keypad and tned to edIt through other ways Mr Filho confirmed thIS He testIfied that he hard a tIme USIng the keypad and dId not lIke USIng It. Mr LeIth testIfied that he was not concerned that Mr Filho reqUIred addItIOnal tIme In on entatIOn. In hIS VIew It was longer than the norm but not alarmIng. SIgmficantly Mr Filho dId not raise any complaInts about hIS onentatIOn to eIther Ms Chu or Mr LeIth, even though he had repeated opportumtIes to do so Mr LeIth testIfied that he met weekly wIth Mr Filho and asked hIm how thIngs were gOIng, how thIngs were progreSSIng and If he needed anythIng. Mr FIlho's responses were always posItIve - he was progreSSIng, he was confident he would do a good Job he was prepared. After approxImately four weeks when Mr LeIth asked hIm how It was gOIng, Mr FIlho told hIm that he was bored readIng through paper and was ready for a small challenge, a sImple assIgnment. AgaIn, no mentIOn was made that he had not receIved the type of onentatIOn or traInIng that he had expected. Mr FIlho dIsputed some of Ms Chu's testImony regardIng the content of hIS on entatIOn, but certaInly not all of It. His testImony confirmed that Ms Chu revIewed the "B" systems overvIew WIth hIm, although he stated that she spent only 30 mInutes wIth hIm on It and he dId not recall If It was the first day He confirmed that Ms Chu explaIned how to use the EdItor that he had access to the system and was to get famIlIar wIth It. He receIved four or five manuals, IncludIng VAX, 9 Cobol, DCL and Syntax, and that she verbally explamed thmgs He acknowledged that she explamed DCL how to compIle, edIt, and save, but stated that she only went through the hIghlIghts wIth hIm, not step-by-step He further testIfied that she spent lIttle tIme WIth hIm after the second week, meetmg wIth hIm one tIme m two or three days when he was expectmg 20 to 30 mmutes per day He dIsputed that she went through the flow charts wIth hIm He testIfied that no one provIded hIm wIth a document outlImng the Employer's expectatIOns and pomts he should know Accordmg to Ms Chu, Mr LeIth and DIrector of ApplIcatIOn Systems, InformatIOn Technology Gary Ramsay such a formal onentatIOn document IS not used wIthm the IT department at the LCBO In hIS testImony the gnevor was qUIte adamant that he "lost three weeks" of hIS onentatIOn penod due to not havmg a workmg computer and that he then had to "start from scratch." He testIfied that although the first computer he had been gIven was excellent, that computer was taken away on the Tuesday of hIS second week on the Job June 5 It was hIS understandmg that there had been a mIX-Up and he was not supposed to have receIved that computer On Wednesday June 6 the replacement computer whIch had msufficIent memory began to crash. He complamed about thIS to Mr LeIth who on Fnday June 8 2001 sent a memo to the head of the End User Computer group requestmg that Mr FIlho's computer be repaired, notmg that "[t]hIS IS becommg very frustratmg "Mr Filho testIfied that hIS computer was repaired by the followmg Wednesday although he also said that It mIght have been Thursday or Fnday Mr LeIth testIfied that the computer was repaired on June 8 the date he sent the memo Accordmg to Mr FIlho he was wIthout a fully workmg computer from Wednesday June 6 to the followmg Wednesday Thursday or Fnday Dunng thIS penod, he testIfied that he was unable to practIce usmg the EdItor 10 Ms Chu testIfied that the problem wIth Mr Filho's computer prevented hIm from loggmg mto the Durham warehouse system, but loggmg m was not reqUIred. She also testIfied that dunng thIS "short penod" whIch she belIeved was three days, she offered Mr FIlho the use of her computer as well as Angela's computer and "walked hIm through thmgs" on her computer Mr FIlho testIfied that both Mr Chu and Angela showed hIm part of the system "over the shoulder" Mr FIlho testIfied that Ms Chu blamed hIm for the computer problem, and told Mr LeIth that he "broke the computer" He testIfied that he dId not tell Ms Chu about the computer problem he was havmg, but mstead went to Mr LeIth about It. After Mr LeIth sent the e-maIl on June 8 whIch was copIed to Ms Chu, the gnevor testIfied that Ms Chu asked hIm about It. He told her that he had complamed to Mr LeIth about hIS computer and she responded that hIS machme was good. He told her that It was not workmg properly Later he said, she went to Mr LeIth's office, saymg that the gnevor's computer was workmg, and when Mr LeIth replIed It was not, she said "So he broke the machme" Mr Filho testIfied that he overheard thIS conversatIOn whIch took place m Mr LeIth's office, approxImately SIX metres away Both Mr LeIth and Ms Chu demed that thIS conversatIOn took place There IS some mconsIstency m the gnevor's testImony about the computer and Ms Chu's knowledge about It. ImtIally he testIfied that he dId not tell Ms Chu about the problem. On cross-exammatIOn, however he went through each day of hIS second week on the Job and stated that on June 6 hIS computer was not workmg and Ms Chu was to repair It, but It crashed. Ms Chu's testImony confirms that she was aware of Mr FIlho's computer problems before the June 8 e- mall She testIfied that she sent off the ImtIal request to the End User group on June 6 whIch was then followed by Mr LeIth's June 8 e-maIl She testIfied that she dId not blame Mr FIlho for the problem wIth hIS computer 11 In exammatIOn-m-chIef, Mr FIlho's lIsted a number of complamts about hIS on entatIOn, m addItIOn to losmg "three weeks" because of the computer and then havmg to "start from scratch." He testIfied that he then lost another week because of a "techmcal problem" although there was no explanatIOn of that. He stated that "no one told me what to learn about DCL" and that he was left to "self-learn" In hIS VIew hIS onentatIOn "dIdn't happen." He was "supposed to be tramed" but was not. As noted, however none of these matters - except for the problems wIth hIS computer - were ever brought to management's attentIOn. C. The First Assignment After tellIng Mr LeIth that he was bored readmg through matenals and ready for an assIgnment, Mr LeIth dIscussed the matter wIth Ms Chu and on June 27 2001 she sent Mr LeIth the followmg e-maIl, copIed to the gnevor From Chu, Joyce Sent Wednesday June 27 2001 11 40 AM CC MontIero Ramumer SubJ ect Job AssIgnment Jeffrey Ramumer has completed the onentatIOn program we have provIded for hIm m the last four weeks We have gone through the overvIew of Durham System on both busmess applIcatIOns and system envIronment under the VMS operatmg system The Job control language (i e DCL) and the edItor are mtroduced. I have encouraged Ramumer to spend as much tIme as possIble to play wIth these layout products usmg the same programs provIded so as to get famIlIar wIth these tools We have provIded 3 sample programs from the Durham FIle Mamtenance Sub- System for hIm to go through wIth the obJectIve IS to have Ramumer to get to know our programmmg conventIOn, error handlIng, file management of our 3 tYPIcal types of programs (i e batch, on -lme and messages dnven tasks) With Ramumer confirmed that he has completed the described above, he IS ready to wnte a sImple batch reportmg program. I have provIded the detaIls of the program obJ ectIve, reqUIrements record layouts and lOgIC of the program to hIm yesterday I have requested Ramumer to draw a program flowchart and walkthrough wIth me to confirm that we are headmg m the nght dIrectIOn before any programmmg work IS to be done In addItIOn, I have requested hIm to desIgn the layout of the report. 12 Ramumer wIll present the report layout and the program flow chart on June 27 The program wIll be completed and tested on July 4 Please Jom us m hIS walkthroughs If you can arrange sometImes from your busy schedule! Joyce Mr FIlho testIfied that he vIewed the assIgnment provIded as "sImple" and was not concerned about the deadlInes lIsted. He antIcIpated spendmg a half-day on the flow chart and three to four days on the programmmg. He stated that he met wIth Ms Chu to talk about thIS assIgnment, although he had expected somethmg m wntmg, especIally the report layout whIch she left hIm to desIgn. In hIS VIew that was lIke askmg hIm to pamt a room but askmg hIm to decIde what colour When asked why he dId not refute Ms Chu's descnptIOn of hIS onentatIOn, as set out m the June 27 e-maIl, he testIfied that he "dIsagreed but dIdn't say anythmg" because he dId not want to start a fight wIth hIS team leader Further he stated that If Ms Chu thought that he was capable of domg the assIgnment that was fine wIth hIm. He stated "If! fall, I take the nsk." Accordmg to Ms Chu, the assIgnment was a sImple one, requITIng the gnevor to merge two reports mto one program to get a complete summary per store, of conveyable products, nonconveyable products and accessones She testIfied that she began theIr dIscussIOn by confirmmg that he was famIlIar wIth theIr envIronment, the edItor and DCL and felt ready to wnte a program. He confirmed that he was and she explamed the assIgnment, askmg hIm to start wIth the flowchart. Together they set the date of June 27 for the flowchart and July 4 for the full assIgnment. She further testIfied that she provIded hIm wIth copIes of the two reports and explamed how he should go about the assIgnment. 13 Mr FIlho began the assIgnment WIth the flowchart to document what he was supposed to do He stated that he was fine wIth that because If she changed the assIgnment, he would have proof of the changes In terms of the layout, he retneved a report from the system as a gUIde to a basIc layout. He also asked questIOns of Angela. He then presented hIS flowchart to Ms Chu. Ms Chu found maJor problems wIth hIS flow chart, mcludmg an mfimte loop Accordmg to Mr FIlho Ms Chu told hIm that hIS flowchart would not work m the real world. He stated that he made the changes she suggested, and he provIded her wIth a second flowchart, and then she made more addItIOns He stated that It took hIm two to three days to get the layout as Ms Chu wanted It. In hIS VIew Ms Chu kept changmg the layout, a sItuatIOn whIch could have been aVOIded If she had told hIm at the begmmng how she wanted the report. Ms Chu testIfied that she found "bIg problems" wIth the gnevor's first flowchart. He had created an mfimte loop Improperly dId a sequentIal read rather than a key read, Improperly placed the "End of FIle" box, and error handlIng, and dId not mclude accessones m the chart. She explamed all thIS and went through the reqUIrements of the assIgnment agam. She spent tIme WIth hIm to ensure that he knew how to do a key read and showed hIm how to do one She revIewed the LCBO's standards regardmg "End of File" and error handlIng. She found further problems on Mr FIlho's second flowchart. It stIll dId not mclude accessones, plus It was mIssmg a final mstructIOn to the computer about what to do after a report IS pnnted. In her VIew thIS was an ObVIOUS, bIg mIstake She said that she explamed these problems to Mr FIlho m detaIl, as well as how to correct them 14 Ms Chu found further problems wIth Mr FIlho's final flowchart. He agam created an mfimte loop and she told hIm how to correct It and to prepare another chart. Mr FIlho dIsputed thIS, statmg the Ms Chu made no comments about It. Mr FIlho began programmmg, workmg on the July 1 holIday weekend to complete the proJ ect although management was not aware of that at the tIme Ms Chu testIfied that she tested hIS results and found one problem wIth hIS final report whIch she showed hIm, then It was corrected by the gnevor The gnevor testIfied that he had forgotten to count the number of records, but stated that thIS "doesn't matter" that It was a "common mIstake" but he dId make the correctIOn. Ms Chu testIfied that thIS assIgnment raised a number of concerns for her about the gnevor's basIc skIlls She found that he dId not understand or have expenence wIth a key read, or understand how to present a logIcal flowchart. In her VIew thIS was a sImple assIgnment and Mr FIlho made a number of basIc mIstakes, such as creatmg mfimte loops, Improperly endmg the program and not properly checkmg hIS test results Mr LeIth confirmed thIS VIew In hIS opmIOn, the gnevor made a number of very basIc errors that were mconsIstent wIth bemg an expenenced Programmer Analyst. He stated that hIS usual concern was wIth overdeveloped flowcharts Instead, the gnevor's were "woefully underdeveloped." Mr LeIth also testIfied that he dIscussed the problems wIth the first assIgnment WIth Mr FIlho and Mr FIlho became cntIcal of Ms Chu, saymg that she was too cntIcal and severe He also stated that he told Mr FIlho that Ms Chu dId not belIeve that he was "gettmg It" and Mr FIlho responded that he was gettmg It. 15 Mr FIlho acknowledged that Ms Chu was not satIsfied wIth hIS work on thIS first assIgnment, that she told hIm that hIS flowcharts were "not what I want" and that she explamed agam what she wanted. He acknowledged that Ms Chu was cntIcal of hIS flow charts and was "not gIvmg me mce feedback." He testIfied that Mr LeIth dId not gIve hIm feedback on the assIgnment. On July 5 2001 Mr LeIth sent a memo to the gnevor regardmg a number of Issues, some of whIch arose as a result of hIS workmg on the first assIgnment dunng the holIday weekend. Mr FIlho attended at work wIthout authonzatIOn and hIS loggmg onto the system dIsrupted system mamtenance work that was takmg place m the warehouse In addItIOn, he dId not properly sIgn m and out, and he transferred LCBO files to hIS home computer The e-maIl memo states, m pertment part SubJ ect Talk of 07/05/2001 I want to confirm our dIscussIOn of thIS mornmg . Any entry to the bUIldmg after hours, you must regIster WIth the secunty guards at the front desk. You need to sIgn the regIster book for each entry and departure . Any tIme you need to work on weekends, you should notIfy Peter DefreIsas m ProductIOn ServIces so that he can mdIcate your presence on the network. ThIS wIll ensure that you wIll not dIsturb plans for system mamtenance at Durham. It wIll also ensure that the network IS avaIlable for the tIme you wIsh to work. . FTP [FIle Transfer Protocol] of mformatIOn to anythmg but the LCBO network must cease ImmedIately You must delete ImmedIately any mformatIOn that IS LCBO based mformatIOn that you may stored outsIde the LCBO network ImmedIately ThIS IS a very senous breach of LCBO polIcy and procedure All LCBO data IS pnvate and confidentIal and must [be] stored on the LCBO network only . Use of the Internet IS restncted to mvestIgatIOn of data that can assIst you m your Job Use IS on an as needed basIs Any other use must be JustIfied and approval of your manager IS necessary 16 . You were hIred as a programmer analyst to work on the Durham Systems I would ask that you lImIt yourself to that functIOn. ThIS IS a very Important functIOn that wIll reqUIre all your skills and effort. As a probatIOnary employee we want to ensure that you have the abIlIty and sIlls to do the Job you were hIred for and you need to dIsplay for us that you mdeed do have the skIlls and abIlIty They form the basIs for our decIsIOn makmg m the preparatIOn of your probatIOnary reVIew . Concernmg weekend work, please confirm wIth your manager before you commIt to workmg weekends OvertIme must be authonzed. It IS expected that you wIll complete your work assIgnments dunng the normal hours of work. We want you to work m thIS office and complete your work dunng your scheduled work week. Please focus your efforts on the Job that you were hIred for dIsplay your skIlls and abIlItIes Be part of the team and dIsplay a dedIcatIOn to the tasks that are assIgned to you. Mr LeIth testIfied that the comments regardmg the gnevor's need to focus on hIS work was because he was on probatIOn and had not yet demonstrated posItIve results He also stated that the gnevor had requested to transfer to another dIvIsIOn. ProbatIOnary employees are not allowed to transfer dunng theIr probatIOnary penod, and the gnevor was so advIsed. Mr FIlho testIfied that he applIed anyway but dId not hear back. Mr LeIth testIfied that the gnevor's response to thIS dIscussIOn on July 5 2001 was "very negatIve" He stated that Mr Filho dId not recogmze that hIS work was substandard, he felt that Joyce Chu was too touch, and and that he felt that he was bemg pIcked on. Mr LeIth left the employ of the LCBO the next day July 6 2001 Accordmg to the gnevor Mr LeIth dId not provIde an overvIew to hIm about hIS performance before he left. After Mr LeIth left, management responsIbIlIty for the LOgIStICS DIVISIOn fell temporanly to Mr Ramsay DIrector ApplIcatIOn Systems The gnevor testIfied that he transferred hIS work files to hIS home computer because he was concerned that Ms Chu would delete hIS work. He testIfied that after her comment that he had broken the computer she "was not fnendly" and was cntIcal of hIS work. He also dId It so he could aVOId usmg the edItor 17 D The Second Assignment On Monday July 9 2001 Ms Chu gave the gnevor a second assIgnment. The Manager Stock Control & AdmInIstratIOn, had requested assIstance from Ms Chu about a pnCIng problem he was encountenng, specIfically that the pnce on certaIn Items came up one cent less that It was supposed to and he wanted to know what was caUSIng that problem In an e-maIl at 9 07 a.m Ms Chu wrote to the gnevor Ramumer You have confirmed that you have completed and understood the sample programs from the FIle MaIntenance Sub-System provIded to you In the past four weeks Please refer to the e-maIl attached and InVestIgate task "MBCC" (i e program MFMT080 from FIle MaIntenance Sub-System) refernng to the problem stated. Please provIde me detaIls of the folloWIng InformatIOn by 3 00 P m. today July 9 2001 - IdentIfy the problem from the program - Approach to take In solvIng the problem If there IS any questIOns regardIng the above, please ask. Joyce The gnevor responded at 2 00 P m wIth hIS analysIs of the problem and that hIS InVestIgatIOn was stIll In progress Ms Chu testIfied that she belIeved that they met later that day whIch was followed by an e-maIl, on July 10 2001 at 8 42 a.m. It states Ramumer As dIscussed at 3 30 pm yesterday you have not found the root of the program yet. You have been try[ing] to tackle the symptom wIthout gOIng Into the causes of the problem The solutIOn you suggest IS the bandage to the symptom that the user has found. We cannot Just patch the dIspute to make It $4 60 Instead of $4 59 The Input can be from 0 00 to 99999 99 how many patches we have to hard code In the program to patch all these? The problems wIll never go away You have to sort thIS out step by step to prove that whether the cause IS from the Input acceptance Input converSIOn, update storage, output converSIOn or output 18 dIsplay Only by findIng out the root of the problem, we can then work out a solutIOn for It. GueSSIng, assumptIOn or bandages are not acceptable Ms Chu testIfied that she advIsed Mr FIlho that a systematIc, step-by-step approach was needed to dIscover where the converSIOn goes wrong and to gUIde hIm Mr FIlho then responded, at 11 54 a.m as follows Joyce, I dId find the "root of the problem" and showed you what mIght [be] caUSIng the problem, see attached DIgItal Document whIch shows some COMP-2 problem DIgItal had In the past and It was fixed In several releases Take a look on step V5- 0-27 on VX COBOL RN V57(LCBO's DEC COBOL V2 3-795) Also I attached my tests results USIng COMP-2Vs COMP-3/COMP-IPIC9(05) The temporary solutIOn I showed you yesterday (July 9th 14 45) In addItIOn the problem IS NOT occurnng from 0 00 to 99999 99 BUT for Just two partIcular ones (4 60 and 9.20) so far I've tested the program several tImes ThIS program was coded In "DATE- WRITTEN 09/04/99* and the clIent reported thIS error on May 18th before I even start workIng here, so I need more tIme In order to gIve you a final solutIOn. If that eXIsts Mr FIlho ImtIally testIfied that he dId not meet wIth Joyce about thIS assIgnment, that all commumcatIOn was through e-maIls He later testIfied that "we talked one tIme about a temporary solutIOn" but she dId not agree to that. In terms of meetIng wIth her after that, he stated "why waste my tIme" He stated that he suggested a temporary solutIOn approach to get nd of the problem, temporanly whIle workIng on a final solutIOn but Ms Chu dId not accept that approach. He testIfied that hIS concern was to please the user fimsh It as soon as possIble, whIle Ms Chu wanted a final solutIOn. 19 On July 10 2001 at 4 16 P m. Ms Chu sent another e-maIl to the gnevor Ramumer If you thInk COMP-2 causes the problem, please provIde me wIth the detaIls how thIS Impact[s] our applIcatIOn (i e on Input acceptance, data converSIOn, data storage or output dIsplay) The DIGITAL document stated the possIbIlIty of the problems of COMP2 but dId not spell out the exact problems As I stated earlIer the temporary solutIOn IS not acceptable because we cannot allow hardcoded value to patch the problem. ThIS IS not even a solutIOn at all You have to work out the permanent solutIOn to fix thIS problem. Temporary hardcoded solutIOn can only be consIdered If they are the only exceptIOns to the rules Your tests have not confirmed that 4 60 and 9 20 are the only exceptIOns SInce you have only tested the program several tImes, unless you have tested all possIbIlItIes (i e from 0 01 to 99999 99) The development date of the program or the frequency of the problem occurrence has nothIng to do wIth the tIme estImate to solve the problem My estImate for a Programmer Analyst on thIS assIgnment IS 1 to 2 days If you need more tIme to work out the solutIOn, please gIve me your estImate and your approach. I do not understand your test results provIded and they are not explaInIng to me about the problem or your proposed solutIOn. F or test results I expect to see Input, expected outputs, actual results I could not see what IS your Inputs or outputs from your test results Joyce Mr FIlho then responded as follows Joyce, Don't expect me to test from O(Zero) to 99999 99 But my revIsed program IS cable [SIC] to handle most of the numbers entered by the user If It loses one or two I'll be very glad to Include It on my lOgIC Just recappIng. The problem IS caused by COMP 2 Vs COMP 3 If you have a better solutIOn, I'll be very pleased to see It. EstImate tIme wIll be Fnday (07/13/01) by 1600 Ramumer On July 11 2001 Mr Filho sent Ms Chu hIS test results and revIsed program, notIng that he found addItIOnal error values such as 8.20 1960 and 20 60 Ms Chu responded at 2 39 pm as follows 20 Ramumer I have tested your revIsed program MRMT080 I don't thInk your fixes work. For example, If I Input 36 80 your revIsed program wIll return 36 79 Please test your program thoroughly You have to find a systematIc methodology to test your program before you can conclude your fixes are workIng. I have tested the current productIOn verSIOn, 19 60 and 20 60 are both workIng fine Please demonstrate to me If you stIll find that dIfferently For your test results, I am stIll havIng problems to Interpret them. Without tellIng me your Inputs, expected results and actual results In logIcal sequence, I could not figure out how your results shoWIng from the screens mak[ e] any logIcal flow In proVIng your pOInt. I am partIcular [SIC] confused why you are shoWIng me the 2 screens for brand deletIOn whIle we are expectIng you to demonstrate thIS pnce update from brand addItIOn. You have not provIded me wIth your estImate and your approach. I need thIS InfOrmatIOn to work on our Job schedule for our team Joyce The folloWIng day July 12,2001 Mr FIlho sent a revIsed program to Ms Chu, along wIth hIS test results She agaIn found problems, notIng that hIS new verSIOn "could not handle a lot of Input pnce values" and asked hIm to work through It agaIn. In response to the gnevor's VIew that he could not be expected to test, Ms Chu wrote RegardIng your prevIOUS reply that we should not expect you to test from 0 00 to 99999 99 Unfortunately I thInk that IS the best way to confirm the fix IS workIng In all cases wIth the user Inputs In thIS sItuatIOn. We cannot delIver a program wIth "known glItch" to our users and Wait for them to find out the problems In addItIOn, the problem IS not only related to the converSIOn of COMP-2 to COMP-3 It also occurs when mOVIng the COMP-2 value to ZZZZZ.ZZ In dIsplay Joyce Mr FIlho acknowledged that It was "probably wrong" to have told Ms Chu that he could not be expected to test from 0 to 99999 99 What he meant to say was that he would not be able to test and find a solutIOn at the same tIme not that he dId not want to test, but he dId not explaIn that to Ms Chu. Further In Mr Filho's VIew Ms Chu was not treatIng hIm In a professIOnal manner He explaIned that It would take an addItIOnal day or two to perform such testIng. Ms Chu, In 21 contrast, testIfied that It was sImple to do so such testmg, by wntmg a field statement m the program. The gnevor on July 13 2001 sent Ms Chu another revIsed program and receIved no response to It. The gnevor acknowledged that through the e-maIls Ms Chu sent to hIm, he was aware that Ms Chu was not satIsfied wIth hIS work performance on thIS assIgnment. At the heanng, he mSIsted that he had found the root of the problem, but Ms Chu dId not agree On cross-exammatIOn, the gnevor also testIfied that he thought that thIS was a dIfficult assIgnment for a new employee, ratmg It a 9 on a scale of 1 to 10 But he dId not want to tell Ms Chu that. Instead, he decIded to try to do It Ms Chu testIfied that Mr FIlho's performance on thIS assIgnment demonstrated that he dId not have the skIlls of a Programmer Analyst. She had concerns about hIS approach, hIS testmg, and lOgIC Further she found that all of her suggestIOns regardmg how to proceed - by takmg a step- by-step approach and testmg - were reJected. Testmg, she explamed, IS one of the mam functIOns of a Programmer Analyst's Job She also had concerns about hIS attItude Ms Chu acknowledged that she dId not tell Mr FIlho that hIS final verSIOn was maccurate She stated that she was frustrated and sought advIse from Mr Ramsay He advIsed her to drop It and have Mr Filho concentrate on gettmg to know the programs, the EdItor and the Job control language E. The Third Assignment After the second assIgnment, Mr FIlho receIved no further work assIgnments from Ms Chu untIl July 31 2001 Instead, she asked hIm to contmue to work hIS EdItor skIlls and learmng the LCBO's systems, and Job control language Mr FIlho complamed about thIS to Mr Ramsay 22 and Mr Ramsay spoke to Ms Chu. She testIfied that Mr Ramsay asked her to assIgn Mr FIlho changes to a program, and she agreed. When he asked If any other assIgnments were possIble, she told hIm that he had not demonstrated that he possessed the expected skIll set to work on more dIfficult system proJects The July 31 2001 assIgnment followed. It Involved updatIng flowcharts, whIch he completed. After that, Ms Chu went on vacatIOn and when she returned, Mr FIlho was reCeIVIng assIgnments from Sautong Chang, Team Leader In the "A" system Mr FIlho testIfied that Mr Ramsay told hIm that Ms Chu dId not trust hIS work. Mr Ramsay confirmed thIS Mr Filho also testIfied that In July he overheard a telephone conversatIOn between Ms Chu and Mr Ramsay shortly before Mr Ramsay went on vacatIOn. He said that Mr Ramsay had contacted Ms Chu to get feedback on hIm, and she told Mr Ramsay that she needs a salary Increase because thIS guy IS too weak; It'S a waste of tIme, that she dId not hIre hIm, Jeffrey dId, and that she had an excellent candIdate for the posItIOn but Jeffrey decIded otherwIse She then told hIm okay go on vacatIOn, and when you get back, we'll talk about It. Both Mr Ramsay and Ms Chu demed that thIS conversatIOn took place Ms Chu testIfied that she never speaks to Mr Ramsay about employees on the telephone and Mr Ramsay confirmed thIS She demed ever tellIng Mr Ramsay that she needed a salary Increase or that workIng wIth Mr Filho was a waste of tIme or that she had a preferred candIdate She dId convey her frustratIOn wIth Mr Filho's performance to Mr Ramsay but dId not do so over the telephone Mr Ramsay's testImony paralleled Ms Chu's He acknowledged that Ms Chu dIscussed her frustratIOn wIth Mr FIlho's performance, but demed that she said the other thIngs attnbuted to her Mr Ramsay testIfied that he went on vacatIOn dunng the second and thIrd weeks of August 2001 not In July Further there was no eVIdence that Ms Chu had a preferred candIdate In fact, 23 Mr LeIth's eVIdence was that the decIsIOn to hIre Mr Filho was a unammous one, approved by hIm, Ms Chu and Ms AZIZ F Assignments from Mr Chang In August, Mr Ramsay testIfied that he decIded to have Mr Chang assIgn some work to Mr FIlho as a second opportumty for Mr FIlho to be assessed by an expenenced Semor Programmer Analyst. Further Mr Chang worked In the "A" system whIch used an IBM platform whIch was more consIstent WIth the gnevor's expenence AccordIng to Mr Ramsay he told Mr Chang to assIgn Mr FIlho some work, document what he was dOIng and assess It. There was no formal transfer ofMr FIlho SInce Mr Chang IS part of the LOgIStICS Department. Mr Filho testIfied that In August he was "transferred" to the "A" system, although no one actually told hIm that he was transferred or reassIgned. Instead, he Just began reCeIVIng assIgnments from Mr Chang. He belIeved that he was transferred because he had complaIned to the Umon, specIfically Claude Moro about the lack of assIgnments, lack of commumcatIOn on hIS team, the lack of any traInIng or coachIng and the unfnendlIness of Ms Chu. Mr Moro testIfied, however that the concern raised by the gnevor Involved the lack of assIgnments Mr Moro testIfied that he brought the gnevor's concern about the lack of assIgnments to the attentIOn of Ms JulIe AZIZ In Human Resources who said that she would take care of It. Some tIme thereafter Mr FIlho receIved an e-maIl from Mr Chang wIth an assIgnment. They dIscussed workIng on the "A" system and Mr Chang told hIm that Ifhe had any questIOns he could consult wIth Hamlet AvasI, a Programmer Analyst. The gnevor testIfied that In August, before he started reCeIVIng assIgnments from Mr Chang, he met wIth Mr Ramsay and asked to transfer to another posItIOn. He had seen a postIng and 24 sought Mr Ramsay's permIssIOn to transfer Mr Ramsay demed thIS request as Mr Filho was stIll on probatIOn. AccordIng to Mr Ramsay he told Mr FIlho that he could not transfer because he was stIll on probatIOn, and that the IndIcatIOns were that he was have dIfficultIes In hIS probatIOn. He testIfied that Mr FIlho's response was that he was overqualIfied for the Job that he wanted to move and was unhappy In the LOgIStICS Department but dId not provIde any detaIls about that. Mr Chang's recollectIOn was that the gnevor first approached hIm about assIgmng hIm work, and that he then checked wIth Mr Ramsay to ensure It was okay He stated that he was asked to gIve hIm some assIgnments, and he dId. He said that he was not told to supervIse the gnevor or to provIde feedback or dIrectIOn to hIm, or evaluate hIm Mr Chang further testIfied, however that he dealt wIth Mr FIlho In the same manner that he deals wIth any employee on probatIOn. He finds a sImple assIgnment for them to do He stated that he does not provIde feedback because In hIS VIew the assIgnment IS eIther correct or not. If there are problems, he advIses to correct them. Mr LeIth also testIfied that programmIng IS a "defined SCIence" not a "subJectIve sCIence" He descnbed It as "pass/fall" - the work IS eIther satIsfactory or It IS not. Mr FIlho testIfied that he was more comfortable wIth the "A" system, SInce It was more WIthIn hIS knowledge and expenence He was not provIded an onentatIOn to the "A" system, but he dId not tell Mr Chang that he had InSUfficIent traInIng on It. He testIfied "Hamlet gave me gUIdance - a lot better than wIth the 'B' system" Mr Chang testIfied that he gave the gnevor three "pretty sImple" assIgnments dunng the penod August 23 2001 to November 2001 The first assIgnment, dated August 23 2001 was a "sImple change to an eXIstIng program" as follows 25 Ramumer ThIS IS a report program. Currently the warehouse name IS hard coded, e g. If the warehouse code IS "L" It moves "London" to warehouse name Please modIfy the program to read the Warehouse Table, VTFAAOOOO USIng TFAA-SPLR-WHSE-SHRT-NM for the warehouse name Please let me know your target dates and keep me Informed of your progress Thanks, Sautong Chang Mr Chang testIfied that he expected to receIve a target date from the gnevor but, Instead, he dId not hear from hIm at all untIl the proJect was completed. On August 30 2001 the gnevor forwarded hIS changes to Mr Chang, statIng that the changes "are already In place" and that he had opened a request to promote them from Test to QA and from Test to productIOn, effectIve September 4 Mr Chang stated that he checked the changes to ensure that they were okay before he approved It. He found that the gnevor had not IdentIfied where he had made the changes, and wIthout that he could not assess the work. He then wrote Ramumer although you have marked where the changes are, It does not show what you have changed. You should leave the ongInal code Intact (comment out wIth a mInUS sIgn) Please see any of the programs that Hamlet has modIfied. The gnevor dId thIS and sent It to Mr Chang. Mr Chang found that the gnevor had changed one lIne that had not been In the assIgnment specIficatIOn - that he "changed somethIng he was not supposed to change" He wrote back, askIng the gnevor why he made thIS change The gnevor explaIned It, and Mr Chang asked hIm to restore the lIne Mr Chang's concern was that the gnevor acted on somethIng wIthout checkIng first wIth hIm. Mr FIlho restored the deleted lIne, and was then asked to make the same changes to three other programs 26 In Mr Chang's VIew thIS assIgnment should have taken an expenenced Programmer Analyst one hour or so Because Mr FIlho was new It could have taken a day or two Mr FIlho took one week. In thIS regard, however It appears that there was a three-day delay In Mr FIlho's obtaInIng access to the LCBO's maInframe computer The second assIgnment was part of a larger proJ ect. The portIOn assIgned to the gnevor was to create a report, by brand, on a dally basIs, shoWIng prevIOUS 4 weeks demand last year and prevIOUS 4 weeks demand thIS year He explaIned how to obtaIn the InfOrmatIOn needed and advIsed hIm to look at sample programs as well as to ask Hamlet. The assIgnment was gIven In early September and he was expectIng It to be done In "one to two weeks, at most." Mr FIlho dId not ask Mr Chang any questIOns about the assIgnment and reported hIS results on September 27 2001 Mr Chang testIfied that It was Incomplete, and he wrote to Mr FIlho as follows, on September 28 Ramumer FInally the results look good. I wIll send the test files to John Alston for hIS reVIew Please complete the four week demand files for IWT's Once John IS satIsfied wIth the results, we can then decIde on the record formal He may want these demand figures In one record for each CSPC Thanks Sautong Mr Chang testIfied that by USIng the word "finally " he meant that It took the gnevor awhIle to get It nght. He stated that Mr FIlho had presented several earlIer results to hIm, whIch were not correct. Mr Chang testIfied that he explaIned to the gnevor what was wrong and told hIm It was not correct. For example, he first presented the four week shIpments, but not from both last year and thIS year He then mIxed up some of the numbers Then, although the numbers separately were accurate when the figures were combIned Into one file, there were mIstakes 27 Fmally when the numbers were correct, he dId not mclude the IWTs The IWT mformatIOn took "another couple of weeks" to complete Mr Chang testIfied that he dId not explam to the gnevor how to correct the mIstakes and Mr FIlho dId not ask hIm. He dId advIse hIm, however that he could go to Hamlet If he had questIOns The thIrd assIgnment was to "convert a sImple query mto a program" by lIstmg the outstandmg purchase orders ThIS, m Mr Chang's VIew was the "easIest" assIgnment smce It mvolved no programmmg. On October 4 2001 Mr FIlho submItted hIS results Mr Chang found problems He wrote, on October 5 Ramumer you are mcludmg deleted PO's and deleted PO lInes whIch should be excluded. You should use the scheduled receIve date on POH not POL Sort by warehouse IS meamngless because everythmg IS for warehouse 102 Sort by PO and Item should suffice Mr FIlho made the requested correctIOns Accordmg to Mr Chang, however he had already told the gnevor not to use the scheduled receIve date on the PO lme but on the PO header mstead, but It had not been changed. In Mr Chang's VIew Mr FIlho dId not demonstrate the skIlls of a Systems Officer 3 He also found hIm not easy to work wIth because he preferred to do thmgs hIS own way He acknowledged, however that he dId not commumcate these problems to Mr Filho He subsequently reported them to Mr Ramsay at hIS request, and testIfied that he was "somewhat surpnsed" at bemg asked for hIS assessment ofMr FIlho The gnevor's ImpressIOn of hIS work wIth Mr Chang was qUIte dIfferent. He testIfied that he completed eIght assIgnments m four months and that hIS work was "excellent" and "a success" All of hIS work was moved mto productIOn, and he had "no problems at all" The only negatIve 28 feedback he receIved from Mr Chang was the "finally " em all and the fact that he used the scheduled receIve date on the PO lIne Instead of the PO header In hIS VIew the changes requested by Mr Chang were addItIOns, not correctIOns, and were not of concern. The gnevor testIfied that wIth Ms Chu, he knew that the work he presented was not what she wanted. With Mr Chang, It was more lIke the work was Incomplete, rather than wrong. G The Decision to Dismiss the Grievor On October 29 2001 Mr Ramsay wrote to Sautong Chang and Joyce Chu regardIng Mr FIlho's probatIOn, statIng "I need a recommendatIOn from both of you If we should eIther release hIm or hIre hIm full tIme If we are to release hIm I wIll need from you some solId reasons that you are wIllIng to document." Both Mr Chang and Ms Chu recommended releasIng Mr FIlho Mr Chang's memo dated November 9 2001 states Gary Jeffrey LeIth hIred Ramumer to work on the Durham "B" system. It dId not work out. He said he had MVS/DB2 expenence and asked me to gIve hIm some assIgnments, whIch you approved. Unfortunately he faIled agaIn. I belIeve we should release hIm because he does not have the potentIal to grow at the LCBO I do not know how many years of expenence he has - he does not appear to know much. He thInks he knows a lot; and he won't lIsten. He does not know how to test. He keeps on gIVIng me the wrong results but won't admIt that they are wrong. It IS very dIfficult to work wIth hIm The first assIgnment was a sImple program modIficatIOn. He had problem In folloWIng our standards He dId not mark where he made the changes He changed somethIng that he was not supposed to When asked why he gave reasons shoWIng that he dId not under thIngs completely The second assIgnment was to wnte a new program USIng an eXIstIng program as a model He also had a lot of help from the semor programmer analyst who wrote the ongInal program. He dId not know how to test hIS results He InsIsted that he needed to copy ProductIOn tables to Test tables In order for hIm to test. He kept on 29 gIvmg me the wrong results Fmally he got It nght but would not admIt that he made a mIstake he said hIS results were nght - Just sorted dIfferently I asked hIm to put the four figures for each CSPC mto one record, that IS one file mstead of four files he was producmg. He then gave me two files Just mergmg the two files mto one (same records) The thIrd assIgnment was to convert a SPUFI mto a program I pomted out hIS mIstakes m wntmg. But he dId not correct all of hIS mIstakes He contmued to use the scheduled receIvmg date m the PO lme mstead of the PO header He sorted PO header PO lme, then PO lme scheduled receIvmg date whIch made no sense Thanks, Sautong On November 2, 2001 Ms Chu responded to Mr Ramsay's request regardmg a recommendatIOn concermng the probatIOn of Mr FIlho Her memo not surpnsmgly was very negatIve She wrote Gary Pnor to Jeffrey's leavmg, I have commumcate [SIC] WIth Jeffrey on a regular basIs to mform hIm that Ramumer has not demonstrated up to satIsfactory level as a Programmer Analyst on both techmcal and busmess aspects Have also wntten a summary of hIS performance regardmg hIS first assIgnment to Jeffrey and a copy was also made to JulIe m H.R. We were also concerned about hIS conduct on the usage of FTP mternet and commg to the office m odd tIme wIthout management approval Please refer to the attached document from Jeffrey After Jeffrey's leavmg, I have documented through e-maIls the 2nd assIgnment gIven to Ramumer The e-maIls were all c c to you, please refer to the attached. Ramumer has been employed as Programmer Analyst for the Durham Warehouse System. He has been mformed clearly m the mtervIew that he wIll be workmg on the VMS system whIch wIll be dIfferent from hIS MVS background. However from the first few weeks onentatIOn on the VMS envIronment, he had showed great resIstance to learn the VMS envIronment and expressed negatIvely agamst the edItor used. His first assIgnment was gIven after he mdIcated he read through the Durham System documentatIOn and wanted to do some programmmg work. He was then assIgned to wnte a program to produce a report on Durham Exam-Room PIcked Cases m three categones (Conveyable, Non-Conveyable & Accessones) In the course of wntmg the program, he demonstrated no abIlIty to perform a sImple key read to an mdexed sequentIal file In hIS resume he mdIcated that he had expenence wIth VSAM file (IBM mdexed sequentIal file) DIsregardmg a lot of 30 help provIded that should not have been reqUIred for an expenenced Programmer Analyst as stated m hIS resume the report produced was totally wrong. Instead of cases total for each category It pnnted the total record counts for each category He also faIled to venfy the test result to confirm the accuracy of the report. His second assIgnment was to make sImple fix to an eXIstmg program on an erroneous data dIsplay and data capture resultmg from data converSIOn. Instead of tackmg the root of the problem so as to find the solutIOn, he performed patches to the symptom of the problem. He mSIsted It was acceptable If the patch would work on a large percentage of the occurrences He belIeves It was acceptable for the users to find out the uncovered ones and then contmue to patch. He raIled to demonstrate hIS abIlIty to perform sImple testmg whIch was very Important before any program's Implemented mto productIOn. When encouraged to follow a systematIc approach to bullet proof hIS changes or at least to find out how many percent the changes had covered, he strongly refused. From the performance of hIS two assIgnments, Ramumer has demonstrated very weak COBOL programmmg techmques and no concept of program/umt test. He had not shown any mterest to learn the Durham System or the busmess He has been very subJectIve that I do no see he can be a good team player ThIS weakness also prevented hIm from lIstemng to other opmIOn[s] and eventually creates [a] great obstacle to learnmg anythmg. Ramumer faIled to prove the skIlls we reqUIred as a programmer analyst and I do not see he has potentIal to obtam the skIlls, therefore I recommend management to release hIm. Joyce Based on thIS feedback and the dIscussIOns he had wIth Mr LeIth before he left and dIscussIOns wIth Ms Chu, Mr Ramsay decIded to dIsmIss Mr FIlho He determmed that Mr FIlho was not qualIfied for the Job and should not have been hIred m the first place He stated that he dIscussed the matter wIth Ms AZIZ from Human Resources and consIdered extendmg Mr FIlho's probatIOn, but decIded that he had not demonstrated the basIc skIlls of the Job and an extensIOn of the probatIOnary penod would not change that. 31 On November 22, 2001 Mr Ramsay along wIth Umon RepresentatIve Moro met wIth Mr FIlho and handed hIm a termmatIOn letter In pertment part, the letter states Dear Ramumer As you are aware, your appomtment letter dated May 7 2001 and effectIve May 28 2001 advIsed that you would be appomted to the posItIOn of Programmer Analyst and reqUIred to complete a sIx-month probatIOnary penod, endmg November 28 2001 Dunng your probatIOnary penod, you were advIsed both verbally and m wntmg of expectatIOns and areas for Improvement. There have been a number of occaSIOns where you have not met the reqUIrements of the Programmer Analyst posItIOn. Regrettably your performance does not meet the expectatIOns of the LCBO and of the posItIOn and as a result, I am notIfymg you that your employment wIll be termmated effectIve ImmedIately /s/ Gary Ramsay DIrector ApplIcatIOns Systems The gnevor testIfied that he was surpnsed by hIS termmatIOn and felt that there was "no reason, basIcally" for It. He was surpnsed because he had completed all of hIS assIgnments for Mr Chang and they were promoted mto productIOn. WhIle he was "not perfect" he had the skIlls and abIlIty to do the Job and had "a lot to contribute" Decision At Issue IS whether the Employer had Just cause to dIscharge the gnevor from hIS probatIOnary posItIOn of Programmer Analyst. The partIes agree that the general standards whIch apply to thIS Issue are those set out by Vice-Chair DIssanayake m Ontario Liquor Board Employees Union (Bell Grievance) and Liquor Board of Ontario GSB No 092/01 (2002) They dIsagree strongly about whether those standards were met. 32 In the Bell decIsIOn, the Board dealt wIth an allegatIOn that the employer dIscharged the gnevor a probatIOnary Customer ServIce RepresentatIve (CSR), wIthout Just cause as reqUIred by ArtIcle 26 4 of the collectIve agreement. The first Issue addressed was whether a lesser standard of Just cause applIes to probatIOnary employees under ArtIcle 26 4 The Board held at pp 18-19 Some authontIes state that a lesser standard of Just cause applIes to probatIOnary employees ThIS m my VIew IS an mcorrect use of termmology A lesser standard of Just cause applIes to probatIOnary employees only If the collectIve agreement says so ArtIcle 264 of the collectIve agreement makes no dIstmctIOn between types of employees wIth regard to Just cause for dIscIplIne and dIsmIssal Therefore, the employer has the onus of provmg Just cause for the termmatIOn of a probatIOnary employee to the usual standard of "balance of probabIlItIes" However m assessmg whether Just cause has been proven m any gIven case, a number of factors may be taken mto account. The employee's probatIOnary status IS such a factor In so rulIng, the Board was fully cogmzant of the purpose of a probatIOnary penod - to assess an employee's performance and sUItabIlIty for the Job It cIted to Re Grace Hospital (1993) 35 L A.C (4th) 410 (Bluman) at pp 20-21 whIch states, m part The fact that an employee IS on probatIOn must properly be taken mto account m assessmg whether the employer has proven "Just cause" for her dIscharge A probatIOnary employee IS by defimtIOn "on tnal" The tnal penod gIves the employer an opportumty to assess whether the employer has demonstrated what arbItrator Dorsey has descnbed as "the abIlIty to meet a reasonable work standard." Stated perhaps sImplIstIcally If the employer IS able to prove on a preponderance of the eVIdence that the employee had a fair opportumty to demonstrate such abIlIty but faIled to do so It has met ItS burden ofprovmg "cause" It IS not a matter of the employer havmg faced a lesser burden, rather the fact of probatIOn added a category of "malconduct" whIch JustIfied termmatIOn. In Bell lIkewIse, the Board determmed at p 21 that "as a general matter poor work performance and unsUItabIlIty may constItute Just cause for the non-dIscIplInary dIscharge of a probatIOnary employee" The Board also determmed, however that although an employer was entItled to an opportumty to assess the employee's capabIlItIes and potentIal dunng the probatIOnary penod and 33 that thIS reVIew constItuted a legItImate employer purpose, It held that the employer must admInIster the probatIOnary penod In a fair and reasonable manner The Board held at pp 30-31 In purSUIng that legItImate purpose partIcularly In the face of a Just cause reqUIrement, the employer must take steps to ensure that It admInIsters the probatIOnary penod In a fair and reasonable manner The onus IS on the employer to establIsh that thIS was done In order to dIscharge that onus the employer must be able to satIsfy the Board of the folloWIng (1) The employee must be made aware of hIs/her dutIes and responsIbIlItIes and of the standards of performance expected dunng the probatIOnary penod. (2) The employer must provIde the employee reasonable assIstance, through coachIng and InstructIOn, to achIeve the reqUIred standard of competence (3) Any deficIencIes must be brought to the employee's attentIOn and the employee gIven reasonable tIme to correct them (4) The employer must not act In bad faith or act In dISCnmInatory fashIOn. (5) The employer must satIsfy the Board that It came to a reasonable conclusIOn that the employee faIled to meet the expected standard and that as a result she was not sUItable to be placed permanently In the posItIOn. The Umon contends that the employer faIled to admInIster Mr FIlho's probatIOnary penod In a fair and reasonable manner as outlIned In the Bell decIsIOn. The Employer asserts that the standards were met and that It sustaIned ItS onus of establIshIng Just cause It submIts that the eVIdence establIshes that the gnevor was not sUItable for the posItIOn of Programmer Analyst, Systems Officer 3 and that It conducted Mr FIlho's probatIOnary penod In a fair and reasonable manner For all of the reasons set forth below I conclude that the standards set forth In Bell have been met In thIS case Although a number of thIngs could have been done better I conclude that, overall, the Employer admInIstered Mr Filho's probatIOnary penod In a fair and reasonable manner under all of the cIrcumstances, and It came to a reasonable conclusIOn that Mr FIlho faIled to meet the expected standards of an expenence Programmer Analyst. 34 1 The employee must be made aware of the duties and responsibilities and the standards of performance. The eVIdence establIshed that Mr FIlho was made aware of the dutIes and responsIbIlItIes of a Programmer Analyst, as well as the standards of performance The gnevor testIfied that the headhunter who recruIted hIm provIded hIm wIth a Job descnptIOn. He was further Informed about the Job dutIes dunng hIS IntervIew WIth Mr LeIth and later wIth Ms Chu. Ms Chu, as Team Leader was hIghly famIlIar wIth the Job even though she acknowledged that she was not famIlIar wIth the posItIOn specIficatIOn for a Systems Officer 3 Mr FIlho dId not refute the testImony of Mr LeIth and Ms Chu about theIr dIscussIOns wIth hIm about the Job Further he was made aware - and he acknowledged - that the posItIOn was not a Jumor posItIOn and reqUIred "more than basIc programmIng and analytIcal skIlls" Mr FIlho knew when he was hIred, that he would be workIng as an expenenced Programmer Analyst In the LOgIStICS Department at the Durham warehouse, workIng on the VMS system. He knew that he would be Involved In all of the tYPIcal thIngs that a Programmer Analyst does - develoPIng programs, testIng, ImplementIng and maIntaInIng them as well as problem-solvIng. The fact that the maJonty of hIS InformatIOn about the Job came dunng the hITIng process - as opposed to afterward - does not alter the fact that he was made aware of the dutIes and responsIbIlItIes of the posItIOn. LIkewIse the fact that the Employer dId not provIde Mr FIlho wIth a copy of the posItIOn specIficatIOn or a copy of the postIng does not demonstrate that he was not made aware of the dutIes of the posItIOn. The eVIdence establIshes that he was made aware and knew what the Job dutIes and responsIbIlItIes were 35 FInally the fact that the posItIOn for whIch Mr FIlho was hIred was an IntermedIate-level Programmer Analyst IS very sIgmficant. ThIS was not an entry-level posItIOn. CertaIn basIc knowledge and skIlls about computer programmIng, desIgn and analysIs were reqUIred, and Mr FIlho was aware of these expectatIOns 2. The employer must provide the employee reasonable assistance, through coaching and instruction, to achieve the required standard of competence. I conclude, on the balance of the probabIlItIes, that the employer dId provIde Mr FIlho wIth reasonable assIstance through coachIng and InstructIOn, to achIeve the reqUIred standard of performance The gnevor's assertIOn that hIS onentatIOn "dIdn't happen" IS not supported by the eVIdence Clearly the gnevor receIved substantIal onentatIOn by Ms Chu. She revIewed, In detaIl, the operatIOn of the "B" system wIth Mr FIlho and spent substantIal tIme WIth hIm In all of the areas that due to hIS background In MVS - as opposed to VMS - he needed to learn. She spent tIme WIth hIm - on several occaSIOns - reVIeWIng the EdItor DCL and the tYPIcal programs used as well as the busIness generally I find that she went through these matters wIth hIm In detaIl, step- by-step Where Ms Chu's eVIdence vanes from that ofMr FIlho I credIt Ms Chu's testImony I found her recollectIOn ofMr Filho's onentatIOn, and what she dId, to be sIgmficantly more preCIse than Mr FIlho's recollectIOn. The fact that Ms Chu dId not provIde Mr FIlho wIth a wntten onentatIOn plan does not undermIne the thoroughness of the on entatIOn. Based on hIS resume and theIr dIscussIOns, Ms Chu was well aware of the areas pertaInIng to VMS that the gnevor lacked and took steps to address those techmcal areas as well as to generally onent the gnevor to the busIness Further the 36 gnevor receIved the same type of onentatIOn that other new employees receIve - taIlored to hIS background - and the eVIdence showed that It was not the LCBO's practIce, In the IT area, to use a formal onentatIOn workplan. There IS no reqUIrement In the collectIve agreement or the Junsprudence to have a such a wntten onentatIOn plan. Nor IS there a reqUIrement to "traIn" an employee In the basIc skIlls of the Job The reqUIrement IS to provIde reasonable assIstance through coachIng and InstructIOn. On examInatIOn-In-chIef, Mr Ramsay was asked why he dId not ask Mr Chang to traIn Mr Filho on the "A" system He ImtIally responded that that was "a good questIOn" but then contInued that traInIng was not provIded In the basIc skIll sets of the Job that an employee was expected to bnng those skIlls to the Job Instead, the InstructIOn was to get to know the "odd thIngs about a posItIOn" and "how thIS specIfic system works wIthIn the LCBO" I find that such InstructIOn was provIded to the gnevor TraInIng regardIng the basIc skIlls of the Job was not reqUIred. Indeed, the probatIOnary penod IS desIgned to determIne If an employee has those basIc skIlls The fact that the gnevor was left on hIS own to read through vanous manuals and to "play" wIth the programs provIded In order to learn the LCBO's system does not amount to a faIlure to onent or Instruct hIm. A certaIn amount of self-Iearmng for an expenenced Programmer Analyst IS reasonable At all tImes, he was provIded wIth assIstance from Angela Xue and took full advantage of that opportumty to ask her questIOns and seek assIstance He also had the opportumty to ask questIOns of Ms Chu, but as he explaIned, he felt more comfortable askIng questIOns of Angela who was at the same level At some pOInt, as counsel for both partIes acknowledged, a certaIn amount of antIpathy developed between the gnevor and Ms Chu. There IS no eVIdence, however that Ms Chu faIled 37 to provIde the gnevor wIth reasonable assIstance - coachIng and InstructIOn - dunng the penod he worked for her as a result of that antIpathy or otherwIse I also conclude that the penod dunng whIch Mr FIlho was wIthout a fully workIng computer dId not undermIne hIS on entatIOn. The eVIdence does not support the gnevor's assertIOn that he was wIthout a computer for three weeks and then had to start from scratch afterward. By hIS own eVIdence, he was wIthout a computer for a week and a half, at most, perhaps less because he was not sure If the problem was fixed on the Wednesday Thursday or Fnday of the folloWIng week. Even assumIng he could not practIce on the EdItor dunng thIS tIme there were many other thIngs he could have done Further hIS onentatIOn lasted a full month and was concluded only when he IndIcated that he was bored and wanted to try an assIgnment. His onentatIOn was not cut short wIthout provIdIng hIm sufficIent tIme to practIce and learn the EdItor Further the eVIdence establIshes that management went to substantIal efforts to correct the computer sItuatIOn for Mr FIlho Mr LeIth sent the June 8 e-maIl to End User ComputIng to have the matter addressed nght away and It was The eVIdence also establIshes that Ms Chu provIded more than Just cntIcIsm to the gnevor She provIded InstructIOn and gUIdance - and the gnevor Ignored her A clear example of thIS IS the gnevor's second assIgnment. Ms Chu advIsed hIm that a systematIc approach was needed. She advIsed hIm In her e-maIl on July 10 2001 at 8 42 a.m. "You have to sort thIS out step by step to prove that whether the cause IS from the Input acceptance, Input conversatIOn, update storage, output converSIOn or output dIsplay Only by findIng out the root of the problem, we can then work out a solutIOn for It." ThIS was gUIdance and InstructIOn. Instead of takIng the step-by-step approach suggested, the gnevor responded by InSIStIng that he dId find the "root of the problem" 38 and InVItIng Ms Chu to reread hIS earlIer submIssIOns Although she advIsed hIm that a bandage or patchIng approach was not acceptable, he contInued preSSIng that approach. Later that same day she explaIned her expectatIOns around testIng. She wrote "For test results I expect to see Input, expected outputs, actual results I could not see what IS your Inputs or outputs from your test results" She also explaIned the need to test from 00 00 to 99999 99 The gnevor dId not perform thIS type of testIng. GUIdance and InstructIOn were also provIded In relatIOn to the gnevor's first assIgnment WIth Ms Chu. She revIewed hIS first flow chart wIth hIm and she IdentIfied the problems wIth It. She Instructed hIm regardIng how to do a key read and revIewed the LCBO standards for "end of file" and error handlIng. Yet the mIstakes contInued. The eVIdence IS very clear that Ms Chu clearly understood her role to provIde Mr FIlho wIth an onentatIOn, assIgnments, gUIdance and feedback, and that she fulfilled that role In regard to the onentatIOn provIded by Ms Chu, I find It sIgmficant that Mr FIlho never complaIned about hIS onentatIOn or lack of gUIdance to Ms Chu or management. He had many opportumtIes to do so but dId not. Although a new employee's reluctance to complaIn about thIngs IS understandable, Mr FIlho dId approach management on other Issues TWIce, he requested a transfer away from the "B" system and complaIned that he was not reCeIVIng enough assIgnments Yet he made no complaInt about hIS onentatIOn It was only after the fact, after hIS termInatIOn, that the gnevor complaIned that hIS onentatIOn "never happened." The eVIdence further establIshes that the gnevor was provIded reasonable assIstance, through coachIng and InstructIOn, dunng the penod he receIved assIgnments from Mr Chang. WhIle there was no onentatIOn to the "A" system, an IBM- MVS system, the gnevor's background was In that 39 type of system He had also already been onented to the operatIOns and busIness systems of the warehouse Further Mr FIlho testIfied that he receIved sIgmficant gUIdance from Hamlet AvasI about the "A" system, far more In hIS VIew than he had receIved about the "B" system. He further testIfied that he receIved sIgmficant gUIdance from Hamlet on all of the assIgnments he receIved from Mr Chang In Bell the Board found nothIng wrong wIth a probatIOnary employee reCeIVIng assIstance and gUIdance from a bargaInIng umt employees, nor dId the Umon argue that It was Improper In thIS case In the Board's VIew the Important Issue was not who provIdes the gUIdance and assIstance, but whether the employee was provIded wIth the appropnate InstructIOn and properly assessed. In thIS case I conclude, on the balance of the probabIlItIes, that the coachIng and InstructIOn provIded by Ms Chu, Angela Xue and Hamlet AvasI provIded the gnevor wIth "reasonable assIstance" to achIeve the reqUIred standard of competence 3 Any deficiencies must be brought to the employee's attention and the employee given a reasonable time to correct them. I conclude, on the balance of probabIlItIes, that the gnevor was advIsed that he was not performIng hIS dutIes as a Programmer Analyst satIsfactonly and was gIven a reasonable tIme to correct them The Employer could have been, and should have been, more explIcIt WIth the gnevor partIcularly dunng the last three months of hIS probatIOnary penod. But, overall, I conclude that the Employer's dIssatIsfactIOn wIth the gnevor's performance was made known to hIm, and he was provIded wIth a reasonable opportumty to Improve The eVIdence was very clear that Ms Chu was hIghly dIssatIsfied wIth the gnevor's performance and commumcated that dIssatIsfactIOn to hIm Although the gnevor at vanous tImes 40 In hIS testImony stated that he receIved "no feedback" he acknowledged, several tImes, that he receIved negatIve feedback from Ms Chu. Even though he dIsagreed wIth her assessment of hIS performance he was fully aware that she was dIssatIsfied wIth hIS performance on both the first and the second assIgnments I also conclude on the balance of probabIlItIes, that Mr FIlho receIved negatIve feedback from Mr LeIth on hIS first assIgnment, before Mr LeIth left. Although Mr LeIth dId not advIse hIm he must Improve ImmedIately or face termInatIOn, Mr LeIth dId remInd hIm on July 5 2001 that he must "dIsplay for us that you Indeed do have the skIlls and abIlIty" to do the Job He was remInded to "focus your efforts on the Job that you were hIred for dIsplay your stIlls and abIlItIes Be part of the team and dIsplay a dedIcatIOn to the tasks that are assIgned to you." The eVIdence further showed that Mr Ramsay In August, told the gnevor that he was not dOIng well In hIS probatIOn. ThIS conversatIOn occurred when Mr FIlho requested a transfer to another dIvIsIOn. Mr Ramsay told hIm that as a probatIOnary employee he could not transfer and that hIS probatIOn was not gOIng well He also told the gnevor that Ms Chu was not assIgmng hIm work because she dId not trust hIS work. It was around thIS tIme that Mr Ramsay asked Mr Chang to provIde assIgnments to Mr FIlho In order to get a second assessment of the gnevor's performance Mr Ramsay should have been more explIcIt WIth the gnevor - about hIS performance Issues and the fact that he was askIng Mr Chang to provIde hIm wIth assIgnments In order to provIde a second assessment of hIS skIlls and abIlItIes At that tIme, Mr LeIth had left the LCBO and the responsIbIlIty for the LOgIStICS Department had temporanly fallen to Mr Ramsay and he was travellIng a lot. As a result, the gnevor belIeved that hIS reCeIVIng assIgnments from Mr Chang 41 occurred because of the complaInts he made to the Umon and through the Umon, to Ms AZIZ In Human Resources He was not made aware that he was to receIve assIgnments from Mr Chang In order to obtaIn a second assessment. Nevertheless, under all of the facts and cIrcumstances, the gnevor at that tIme, was fully aware that the Employer was not satIsfied wIth hIS performance He was made aware of thIS by Ms Chu, Mr LeIth and by Mr Ramsay Mr Ramsay advIsed hIm that Ms Chu dId not trust hIS work and that there were problems wIth hIS probatIOn. He then began reCeIVIng assIgnments from Mr Chang. Although the fact that Mr FIlho was beIng gIven a second chance to prove hImself wIth Mr Chang should have been made explIcIt, Mr FIlho lIkewIse should have realIzed that he was beIng gIven a second chance He had requested a transfer away from the "B" system, away from Ms Chu and now he was reCeIVIng work from Mr Chang In the "A" system. He was stIll on probatIOn. The probatIOn was not gOIng well ThIS was hIS opportumty to prove hImself Because Mr FIlho was made aware of hIS performance deficIencIes on an ongoIng basIs, the fact that no formal performance appraisal was performed IS not relevant. The advantage of a formal appraisal, as the Umon contends, IS that It clearly expresses management's concerns and expectatIOns The key however IS not whether the employee IS advIsed of hIS or her performance Issues Informally or formally the key IS whether or not the employee IS Informed about those Issues From the eVIdence presented, there IS no questIOn that Mr FIlho was made aware of hIS performance problems before he began to receIve assIgnments from Mr Chang. There IS a sIgmficant dIscrepancy In the eVIdence between Mr Chang and Mr FIlho however about the feedback provIded to Mr Filho regardIng hIS work assIgnments for Mr Chang. AccordIng to Mr FIlho everythIng he dId was excellent and promoted Into productIOn, and the 42 changes Mr Chang requested were addItIOns, not correctIOns AccordIng to Mr Chang, they were correctIOns because mIstakes - as well as Incompleteness - had occurred and he advIsed the gnevor that hIS results were Incorrect. In thIS area, I credIt the testImony of Mr Chang over that of the gnevor The e-maIls concernIng the three assIgnments show that the gnevor's work was not "excellent" and wIthout problems, as he claimed. On the first assIgnment, the gnevor dId not provIde hIS target dates as requested, he dId not leave the ongInal code Intact to IndIcate the changes made, and he changed somethIng that was not supposed to be changed wIthout checkIng first wIth Mr Chang. On the second assIgnment, Mr Chang testIfied about numerous Incorrect results and mIstakes made by the gnevor whIch he conveyed to the gnevor leadIng to the "[flInally the results look good" e-maIl The gnevor acknowledged that thIS was a cntIcal e-maIl from Mr Chang. Even then, the gnevor faIled to Include the InformatIOn for the IWT's, as ongInally requested. Finally In terms of the last assIgnment, the gnevor contInued to use the scheduled receIve date on the PO lIne Instead of the header even though Mr Chang had advIsed hIm of that error before These e-maIls support Mr Chang's testImony about problems wIth Mr FIlho's work. They do not support the gnevor's testImony that there were "no problems" wIth hIS work. Could the feedback have been more explIcIt? Yes, but clearly there was feedback. Mr Chang dId dISCUSS the gnevor's mIstakes wIth hIm - and they were mIstakes, not changes Consequently I conclude that Mr FIlho was advIsed by Mr Chang regardIng deficIencIes In hIS performance and gIven a reasonable opportumty to Improve Mr Chang's testImony that he was not aware he was to evaluate, coach and Instruct Mr FIlho IS troublIng. Mr Ramsay testIfied that he told Mr Chang to assIgn work to Mr FIlho assess 43 It and keep hIm Informed. Mr Chang's recollectIOn was that FIlho came to hIm askIng for work, It was approved by Mr Ramsay and he was not aware that he was to assess hIm, coach or Instruct hIm. He Just followed Mr Ramsay InstructIOns to assIgn Mr FIlho work. Yet he also testIfied that he treats employees who are assIgned to hIm dunng theIr probatIOnary penod the same way as he treated Mr Filho - find a sImple assIgnment and see how It'S done, wIth assIstance from Hamlet If needed. Further as noted, the eVIdence establIshes that Mr Chang dId, In fact, provIde feedback to Mr FIlho on hIS work, and that assIstance was provIded by Hamlet. Under these cIrcumstances, I conclude that the fact that even though Mr Chang dId not realIze the extent of hIS role In relatIOn to the gnevor the gnevor's performance deficIencIes were brought to hIS attentIOn and he was provIded wIth reasonable tIme and assIstance to correct them 4 The employer must not act in bad faith or act in a discriminatory fashion. There was no eVIdence that the Employer acted In bad faith or In a dISCnmInatory fashIOn. Ms Chu was clearly frustrated wIth the gnevor's performance and lack of basIc skIlls, but she dId try to work wIth the gnevor She provIded InstructIOn and gUIdance whIch was reJected by the gnevor at tImes In a hIghly antagomstIc way For example hIS InSIstence that he dId find the "root of the problem" and hIS statement "[d]on't expect me to test from 0 (zero) to 9999999" It may well be that, after the second assIgnment, Ms Chu gave up on the gnevor but the employer dId not. Mr Chang was dIrected to assIgn work to the gnevor Nor IS there any bad faith eVIdenced by the selectIOn of the assIgnments provIded to Mr Filho Mr Filho testIfied that the first assIgnment was "sImple" and appropnate WhIle he thought that the second one was dIfficult, he never IndIcated any problems wIth It. There was no assertIOn by Mr Filho that the assIgnments he receIved from Mr Chang were Improper Further all of the 44 assIgnments appear to be well wIthIn the responsIbIlItIes of an expenenced Programmer Analyst and a fair assessment of the gnevor's abIlItIes There IS no eVIdence that the Employer treated Mr Filho's probatIOnary penod dIfferently than any other employee Mr Moro testIfied that It was hIghly unusual and "very strange" for an employee In IT not to be fully utIlIzed. He testIfied that the department operates on a very "lean" basIs, and "we're all busy" yet dunng Mr FIlho's probatIOn there were clearly gaps In hIS assIgnments The gnevor's first assIgnment was completed on Tuesday July 3 the day after the holIday weekend, and hIS next assIgnment was on July 9 - a gap of two or three workdays He provIded hIS last e-maIl to Ms Chu on the second assIgnment on July 13 and hIS thIrd assIgnment was not gIven untIl July 31 2001 - a gap of 2 1Iz weeks Dunng that tIme, however the gnevor was Instructed to reVIew the basIcs agaIn. ThIS, In my VIew was an assIgnment. But after the thIrd assIgnment, there was approxImately a three-week gap untIl August 23 when Mr FIlho receIved hIS first assIgnment from Mr Chang. These gaps In provIdIng Mr FIlho wIth assIgnments do not IndIcate bad faith or that he was treated In a dISCnmInatory fashIOn. There were reasons for the gaps - most notably the lImItatIOns In Mr FIlho's skIlls and abIlItIes as demonstrated by hIS performance on the first two assIgnments and Ms Chu's consequent reluctance to assIgn hIm proJects on a system-level In addItIOn, gaps were caused by the sudden departure of Mr LeIth, Ms Chu's vacatIOn In early August and Mr Ramsay's vacatIOn dunng the second and thIrd weeks of August. Dunng thIS tIme, Mr FIlho dId appear to "fall through the cracks" as the Umon asserts, but these gaps do not, under the facts of thIS case, demonstrate bad faith or dISCnmInatory treatment. The probatIOnary penod was sufficIently long, despIte these gaps, to provIde a full and fair assessment of the gnevor's abIlItIes 45 LIkewIse under the facts, the gaps between assIgnments do not demonstrate IndIfference or hoStIlIty to Mr Filho 5. The employer must satisfy the Board that it came to a reasonable conclusion that the employee failed to meet the expected standard and that as a result the grievor was not suitable to be placed permanently in the position. Based on the totalIty of the eVIdence presented, thIS Board IS satIsfied that the employer came to a reasonable conclusIOn that the gnevor faIled to meet the expected standard and that the gnevor was not sUItable to be placed permanently In the posItIOn of Programmer Analyst, at the System Officer 3 level ThIS case has a number of sImIlantIes to Re West Kootenay POYf,er & Light Co and Office & Technical Employees Union, Local 378 (1989) 4 L.A.C (4th) 172 (Grey ell) cIted by the Employer In that case, the gnevor was hIred as a programmer/analyst. There, as here, the employer was seekIng an expenenced programmer/analyst who had the skIlls, after a reasonable famIlIanzatIOn penod, to assume programmer/analyst responsIbIlItIes Although the gnevor had never seen the postIng, he was aware that the employer was seekIng an expenenced IndIVIdual The gnevor In that case, was termInated after only 19 days In the Job allegedly because hIS level of competence dId not meet that reqUIred by the employer for the posItIOn. The matter was gneved, and the arbItrator ruled that the employer had to establIsh "Just and reasonable cause" The arbItrator found that the gnevor's onentatIOn, whIch consIsted of hIS spendIng two hours wIth a colleague beIng bnefed on the employer's operatIOns, was "lackIng" and that the employer hIred the gnevor realIzIng that he dId not meet all of the reqUIrements ongInally set for the posItIOn. Nevertheless, the arbItrator ruled, at p 188 that "the gnevor when he applIed for the 46 posItIOn, was aware that he was to bnng the expertIse of a semor programmer/analyst to the posItIOn" The employer devIsed a test to assess the gnevor's programmIng skIlls - "skIlls that went to the very core of hIS Job functIOn" and "dId not reqUIre one to exerCIse dIfficult programmIng skIlls" The gnevor dId not successfully complete the evaluatIOn. He dId not complete the proJect by the deadlIne He spend 25 hours wntIng the code for the program when It should have taken between three to five hours, and hIS efforts dId not YIeld a workable program The arbItrator determIned that the assIgnment was a fair test of the gnevor's abIlItIes The arbItrator stated at p 189 HavIng regard to the gnevor's knowledge of the Job reqUIrements (i e an expenenced programmer/analyst) that Ms Hardman [the colleague] was made avaIlable as a resource person to explaIn the employer's programs and to assIst In codIng the program wntten by the gnevor Into the computer I am of the VIew the test was emInently fair The gnevor sImply has not demonstrated that he has the skIlls he said he had dunng the course of the hITIng process Dunng that process Mr Parent and the gnevor had establIshed a mutual level of expectatIOn of the Job reqUIrements and skIlls to be exercIsed by the gnevor The gnevor was aware the employer was searchIng for an expenenced programmer/analyst. He held hImself out as possessIng those basIc skIlls In my OpInIOn, the gnevor fell consIderably short of meetIng a reasonable skIll level for the posItIOn The same conclusIOns are applIcable here The gnevor Mr FIlho was a new employee on probatIOn - the penod of tIme that the employer has to determIne the employee's sUItabIlIty for the Job Mr FIlho's Job as a Programmer Analyst In the LOgIStICS Department was an Important J ob In lIght of the Importance of the Durham warehouse to the tImely and accurate flow of product wIthIn the LCBO The posItIOn reqUIred the skIlls of an expenenced programmer/analyst. UnlIke the sItuatIOn In Re West Kootenay POYf,er & Light Company supra, Mr FIlho was gIven a full onentatIOn and provIded reasonable assIstance through coachIng and InstructIOn. He was made aware of hIS dutIes and responsIbIlItIes and the standard of performance expected of hIm DeficIencIes In hIS performance were brought to hIS attentIOn and he was provIded a reasonable 47 tIme and opportumty to correct them. Yet he contInued to make basIc mIstakes Based on all of the eVIdence, I conclude that the employer provIded Mr FIlho wIth a fair and reasonable onentatIOn penod and made a reasonable conclusIOn that he faIled to meet the expected standards of an expenenced Programmer Analyst. I conclude that the Employer had establIshed, on the balance of probabIlItIes, Just cause to dIsmIss Mr FIlho For these reasons, the gnevance must be dIsmIssed. Issued at Toronto thIS 27th day of August, 2003 RandI H. Abramsky Vice-Chair