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

Ontario Liquor Control Boards Employees’ Union (Filho)

Grievor

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Mr. Craig Flood Koskie Minsky Barristers and Solicitors

FOR THE EMPLOYER

Mr. Michael Horvat Ogilvy Renault Barristers and Solicitors

HEARING

September 18, October 2, December 6, 11, 12, 2002; January 3, April 10 & 17, June 16, July 15, 2003.

AWARD

The Union has grieved the dismissal of Ramunier Filho, the grievor, from his position as a probationary Programmer Analyst. The grievance alleges that the dismissal violates Article 26.4 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 significant experience 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 Ontario 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 Senior 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, describes the positions available as follows:

The Information Technology Division has dynamic opportunities for innovative professionals seeking challenging work in programming, design, development and implementation in various 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 planning 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 experience.” The posting continues:

Qualifications include proven experience maintaining and enhancing Logistics Systems. Extensive experience in Cobol, DB2, CICS, and JCL on the MVS platform and/or VMS experience in Cobol and DCL. Unix, Oracle, and Developer 2000. …. As well, excellent problem solving, interpersonal and communication skills are required. A proven ability to organize and schedule multiple concurrent tasks to meet commitments is required.

Mr. Filho testified that he had been provided with a “job description” 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 experience in programming and analysis including four years of experience in Canada and approximately two years experience in Brazil. It listed significant experience 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 during 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.

Ms. Chu testified that in the interview, Mr. Filho demonstrated a lot of interest in learning a new environment, and assured her that he would have no problems learning 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 grievor acknowledged that Mr. Leith told him that the position was “not a junior 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, S.O. 3, in the Logistics Department, commencing May 28, 2001. The letter advises that he would “be required to complete a six-month probationary period.” Mr. Filho testified that he understood that the purpose of the probationary period was to show performance and to see if he was capable of doing the job.

B. The Orientation

On May 28, 2001, the grievor 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 period for orientation. Rather, assignments would progress based on when he felt confident and comfortable.

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 organizational 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 Ontario 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 orientation going through this information and demonstrating the various applications. During 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 libraries to Mr. Filho: copybook, source library, job control language library and procedure libraries, and explained how to use them to execute a program. She explained how to prepare a series of instructions written in job control language. She also 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 security on the technical side, including the different levels of security 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 beginning of the second week of orientation, Ms. Chu stated that she started to give him examples of various 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 various directories and listings he would need. Again, because this area was different than IBM, she spent time on it with the grievor. She introduced him to various 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 during the second week, Ms. Chu gave the grievor 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 daily basis. She printed 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 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 nice and friendly;

• The Company is very organized (booklets for benefits, to get access to the network, mainframe, access card were very fast…);

• It’s good having a cafeteria on-site.

Cons:

• The coffee is not free.

Ms. Chu testified that the normal orientation period 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 experience and know how to find things. Mr. Filho’s orientation took approximately four weeks.

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 tried 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 orientation. In his view, it was longer than the norm but not alarming. Significantly, Mr. Filho did not raise any complaints about his orientation to either Ms. Chu or Mr. Leith, even though he had repeated opportunities 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 orientation or training that he had expected.

Mr. Filho disputed some of Ms. Chu’s testimony regarding the content of his orientation, 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, Cobol, DCL and Syntax, and that she verbally explained things. He acknowledged that she explained 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, meeting with him one time in two or three days when he was expecting 20 to 30 minutes per day. He disputed that she went through the flow charts with him. He testified that no one provided him with a document outlining the Employer’s expectations and points he should know. According to Ms. Chu, Mr. Leith and Director of Application Systems, Information Technology, Gary Ramsay, such a formal orientation document is not used within the IT department at the LCBO.

In his testimony, the grievor was quite adamant that he “lost three weeks” of his orientation period due to not having a working 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 understanding 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 insufficient memory, began to crash. He complained about this to Mr. Leith who, on Friday, June 8, 2001, sent a memo to the head of the End User Computer group, requesting that Mr. Filho’s computer be repaired, noting that “[t]his is becoming very frustrating…” Mr. Filho testified that his computer was repaired by the following Wednesday, although he also said that it might have been Thursday or Friday. Mr. Leith testified that the computer was repaired on June 8, the date he sent the memo. According to Mr. Filho, he was without a fully working computer from Wednesday, June 6 to the following Wednesday, Thursday or Friday. During this period, he testified that he was unable to practice using the Editor.

Ms. Chu testified that the problem with Mr. Filho’s computer prevented him from logging into the Durham warehouse system, but logging in was not required. She also testified that during this “short period”, 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 things” 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 having, but instead went to Mr. Leith about it. After Mr. Leith sent the e-mail on June 8, which was copied to Ms. Chu, the grievor testified that Ms. Chu asked him about it. He told her that he had complained to Mr. Leith about his computer and she responded that his machine was good. He told her that it was not working properly. Later, he said, she went to Mr. Leith’s office, saying that the grievor’s computer was working, and when Mr. Leith replied it was not, she said “So, he broke the machine.” Mr. Filho testified that he overheard this conversation which took place in Mr. Leith’s office, approximately six metres away. Both Mr. Leith and Ms. Chu denied that this conversation took place.

There is some inconsistency in the grievor’s testimony about the computer and Ms. Chu’s knowledge about it. Initially, he testified that he did not tell Ms. Chu about the problem. On cross-examination, however, he went through each day of his second week on the job and stated that on June 6, his computer was not working 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-mail. She testified that she sent off the initial 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.

In examination-in-chief, Mr. Filho’s listed a number of complaints about his orientation, in addition to losing “three weeks” because of the computer and then having to “start from scratch.” He testified that he then lost another week because of a “technical 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 orientation “didn’t happen.” He was “supposed to be trained” 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 reading through materials and ready for an assignment, Mr. Leith discussed the matter with Ms. Chu and on June 27, 2001, she sent Mr. Leith the following e-mail, copied to the grievor:

From: Chu, Joyce

Sent: Wednesday, June 27, 2001 11:40 AM

CC: Montiero, Ramunier

Subject: Job Assignment

Jeffrey,

Ramunier has completed the orientation program we have provided for him in the last four weeks. We have gone through the overview of Durham System on both business applications and system environment under the VMS operating system. The job control language (i.e., DCL) and the editor are introduced. I have encouraged Ramunier to spend as much time as possible to play with these layout products using the same programs provided so as to get familiar with these tools. We have provided 3 sample programs from the Durham File Maintenance Sub-System for him to go through with the objective is to have Ramunier to get to know our programming convention, error handling, file management of our 3 typical types of programs (i.e., batch, on –line and messages driven tasks).

With Ramunier confirmed that he has completed the described above, he is ready to write a simple batch reporting program. I have provided the details of the program objective, requirements record layouts and logic of the program to him yesterday. I have requested Ramunier to draw a program flowchart and walkthrough with me to confirm that we are heading in the right direction before any programming work is to be done. In addition, I have requested him to design the layout of the report.

Ramunier will present the report layout and the program flow chart on June 27. The program will be completed and tested on July 4. Please join us in 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 spending a half-day on the flow chart and three to four days on the programming. He stated that he met with Ms. Chu to talk about this assignment, although he had expected something in writing, especially the report layout which she left him to design. In his view, that was like asking him to paint a room but asking him to decide what colour.

When asked why he did not refute Ms. Chu’s description of his orientation, as set out in the June 27 e-mail, he testified that he “disagreed but didn’t say anything” 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 doing the assignment that was fine with him. He stated: “If I fail, I take the risk.”

According to Ms. Chu, the assignment was a simple one, requiring the grievor to merge two reports into one program to get a complete summary, per store, of conveyable products, nonconveyable products and accessories. She testified that she began their discussion by confirming that he was familiar with their environment, the editor and DCL and felt ready to write a program. He confirmed that he was and she explained the assignment, asking 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 explained how he should go about the assignment.

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 retrieved 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, including an infinite loop. According to Mr. Filho, Ms. Chu told him that his flowchart would not work in 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 changing the layout, a situation which could have been avoided if she had told him at the beginning how she wanted the report.

Ms. Chu testified that she found “big problems” with the grievor’s first flowchart. He had created an infinite loop, improperly did a sequential read rather than a key read, improperly placed the “End of File” box, and error handling, and did not include accessories in the chart. She explained all this and went through the requirements of the assignment again. 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 regarding “End of File” and error handling.

She found further problems on Mr. Filho’s second flowchart. It still did not include accessories, plus it was missing a final instruction to the computer about what to do after a report is printed. In her view, this was an obvious, big mistake. She said that she explained these problems to Mr. Filho, in detail, as well as how to correct them.

Ms. Chu found further problems with Mr. Filho’s final flowchart. He again created an infinite loop and she told him how to correct it and to prepare another chart. Mr. Filho disputed this, stating the Ms. Chu made no comments about it.

Mr. Filho began programming, working on the July 1 holiday weekend to complete the project 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 grievor. The grievor 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 grievor’s basic skills. She found that he did not understand or have experience 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 creating infinite loops, improperly ending the program and not properly checking his test results.

Mr. Leith confirmed this view. In his opinion, the grievor made a number of very basic errors that were inconsistent with being an experienced Programmer Analyst. He stated that his usual concern was with overdeveloped flowcharts. Instead, the grievor’s were “woefully underdeveloped.” Mr. Leith also testified that he discussed the problems with the first assignment with Mr. Filho, and Mr. Filho became critical of Ms. Chu, saying that she was too critical and severe. He also stated that he told Mr. Filho that Ms. Chu did not believe that he was “getting it” and Mr. Filho responded that he was getting it.

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 explained again what she wanted. He acknowledged that Ms. Chu was critical of his flow charts and was “not giving me nice 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 grievor regarding a number of issues, some of which arose as a result of his working on the first assignment during the holiday weekend. Mr. Filho attended at work without authorization and his logging onto the system disrupted system maintenance work that was taking place in the warehouse. In addition, he did not properly sign in and out, and he transferred LCBO files to his home computer. The e-mail memo states, in pertinent part:

Subject: Talk of 07/05/2001

I want to confirm our discussion of this morning:

• Any entry to the building after hours, you must register with the security 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 in Production Services so that he can indicate your presence on the network. This will ensure that you will not disturb plans for system maintenance at Durham. It will also ensure that the network is available for the time you wish to work.

• FTP [File Transfer Protocol] of information to anything but the LCBO network must cease immediately. You must delete immediately any information that is LCBO based information that you may stored outside the LCBO network immediately. This is a very serious breach of LCBO policy and procedure. All LCBO data is private and confidential and must [be] stored on the LCBO network only.

• Use of the Internet is restricted to investigation of data that can assist you in your job. Use is on an as needed basis. Any other use must be justified and approval of your manager is necessary.

• 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 indeed do have the skills and ability. They form the basis for our decision making in the preparation of your probationary review.

• Concerning weekend work, please confirm with your manager before you commit to working weekends. Overtime must be authorized. It is expected that you will complete your work assignments during the normal hours of work. We want you to work in this office and complete your work during 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 regarding the grievor’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 grievor had requested to transfer to another division. Probationary employees are not allowed to transfer during their probationary period, and the grievor was so advised. Mr. Filho testified that he applied anyway, but did not hear back. Mr. Leith testified that the grievor’s response to this discussion on July 5, 2001 was “very negative.” He stated that Mr. Filho did not recognize that his work was substandard, he felt that Joyce Chu was too touch, and and that he felt that he was being picked on. Mr. Leith left the employ of the LCBO the next day, July 6, 2001. According to the grievor, 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 temporarily to Mr. Ramsay, Director, Application Systems.

The grievor 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 friendly” and was critical of his work. He also did it so he could avoid using the editor.

D. The Second Assignment

On Monday, July 9, 2001, Ms. Chu gave the grievor a second assignment. The Manager, Stock Control & Administration, had requested assistance from Ms. Chu about a pricing problem he was encountering, specifically that the price 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 grievor:

Ramunier,

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) referring 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 grievor 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:

Ramunier,

As discussed at 3:30 p.m. 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 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-1PIC9(05). The temporary solution I showed you yesterday (July 9th 14:45)… In addition the problem is NOT occurring 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 initially testified that he did not meet with Joyce about this assignment, that all communication 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 rid of the problem, temporarily, while working on a final solution but Ms. Chu did not accept that approach. He testified that his concern was to please the user, finish it as soon as possible, while Ms. Chu wanted a final solution.

On July 10, 2001 at 4:16 p.m., Ms. Chu sent another e-mail to the grievor:

Ramunier,

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.

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.

Joyce.

Mr. Filho then responded as follows:

Joyce,

Don’t expect me to test from 0(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 Friday (07/13/01) by 16:00.

Ramunier.

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, 19.60 and 20.60. Ms. Chu responded at 2:39 p.m., as follows:

Ramunier,

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 price 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 price values” and asked him to work through it again. In response to the grievor’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 contrast, testified that it was simple to do so such testing, by writing a field statement in the program.

The grievor on July 13, 2001 sent Ms. Chu another revised program and received no response to it. The grievor 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 hearing, he insisted that he had found the root of the problem, but Ms. Chu did not agree.

On cross-examination, the grievor also testified that he thought that this was a difficult assignment for a new employee, rating 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 testing, and logic. Further, she found that all of her suggestions regarding how to proceed – by taking a step-by-step approach and testing - were rejected. Testing, she explained, is one of the main 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 inaccurate. She stated that she was frustrated and sought advise from Mr. Ramsay. He advised her to drop it and have Mr. Filho concentrate on getting 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 continue to work his Editor skills and learning the LCBO’s systems, and job control language. Mr. Filho complained about this to Mr. Ramsay, 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 denied 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 denied 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 denied that she said the other things attributed to her.

Mr. Ramsay testified that he went on vacation during 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, Mr. Leith’s evidence was that the decision to hire Mr. Filho was a unanimous 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 opportunity for Mr. Filho to be assessed by an experienced Senior Programmer Analyst. Further, Mr. Chang worked in the “A” system which used an IBM platform which was more consistent with the grievor’s experience. 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 of Mr. 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 Union, specifically Claude Moro, about the lack of assignments, lack of communication on his team, the lack of any training or coaching and the unfriendliness of Ms. Chu. Mr. Moro testified, however, that the concern raised by the grievor involved the lack of assignments. Mr. Moro testified that he brought the grievor’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 if he had any questions he could consult with Hamlet Avasi, a Programmer Analyst.

The grievor 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 sought Mr. Ramsay’s permission to transfer. Mr. Ramsay denied this request as Mr. Filho was still on probation. According to Mr. Ramsay, he told Mr. Filho that he could 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 grievor first approached him about assigning 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 grievor, 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 described it as “pass/fail” - 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 experience. He was not provided an orientation 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 grievor three “pretty simple” assignments during the period August 23, 2001 to November 2001. The first assignment, dated August 23, 2001, was a “simple change to an existing program”, as follows:

Ramunier,

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, VTFAA0000, 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 grievor but, instead, he did not hear from him at all until the project was completed. On August 30, 2001, the grievor 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 grievor had not identified where he had made the changes, and without that he could not assess the work. He then wrote:

Ramunier, although you have marked where the changes are, it does not show what you have changed. You should leave the original code intact (comment out with a minus sign). Please see any of the programs that Hamlet has modified.

The grievor did this and sent it to Mr. Chang. Mr. Chang found that the grievor 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 grievor why he made this change. The grievor explained it, and Mr. Chang asked him to restore the line. Mr. Chang’s concern was that the grievor 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.

In Mr. Chang’s view, this assignment should have taken an experienced 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 project. The portion assigned to the grievor was to create a report, by brand, on a daily 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:

Ramunier,

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 grievor awhile to get it right. He stated that Mr. Filho had presented several earlier results to him, which were not correct. Mr. Chang testified that he explained to the grievor 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. Finally, when the numbers were correct, he did not include the IWTs. The IWT information took “another couple of weeks” to complete. Mr. Chang testified that he did not explain to the grievor 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 into a program” by listing the outstanding purchase orders. This, in Mr. Chang’s view, was the “easiest” assignment since it involved no programming. On October 4, 2001, Mr. Filho submitted his results. Mr. Chang found problems. He wrote, on October 5:

Ramunier, you are including 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 meaningless because everything is for warehouse 102. Sort by PO and item should suffice.

Mr. Filho made the requested corrections. According to Mr. Chang, however, he had already told the grievor not to use the scheduled receive date on the PO line but on the PO header instead, 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 things his own way. He acknowledged, however, that he did not communicate these problems to Mr. Filho. He subsequently reported them to Mr. Ramsay, at his request, and testified that he was “somewhat surprised” at being asked for his assessment of Mr. Filho.

The grievor’s impression of his work with Mr. Chang was quite different. He testified that he completed eight assignments in four months and that his work was “excellent” and “a success.” All of his work was moved into production, and he had “no problems at all.” The only negative feedback he received from Mr. Chang was the “finally….” email 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 grievor 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 Ramunier to work on the Durham “B” system. It did not work out. He said he had MVS/DB2 experience 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 experience 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 write a new program using an existing program as a model. He also had a lot of help from the senior programmer analyst who wrote the original 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 giving me the wrong results. Finally he got it right but would not admit that he made a mistake, he said his results were right – just sorted differently. I asked him to put the four figures for each CSPC into one record; that is one file instead of four files he was producing. He then gave me two files just merging the two files into one (same records).

The third assignment was to convert a SPUFI into a program. I pointed out his mistakes in writing. But he did not correct all of his mistakes. He continued to use the scheduled receiving date in the PO line instead of the PO header. He sorted PO header, PO line, then PO line scheduled receiving date which made no sense.

Thanks,

Sautong

On November 2, 2001, Ms. Chu responded to Mr. Ramsay’s request regarding a recommendation concerning the probation of Mr. Filho. Her memo, not surprisingly, was very negative. She wrote:

Gary,

Prior to Jeffrey’s leaving, I have communicate [sic] with Jeffrey on a regular basis to inform him that Ramunier has not demonstrated up to satisfactory level as a Programmer Analyst on both technical and business aspects. Have also written a summary of his performance regarding his first assignment to Jeffrey and a copy was also made to Julie in H.R. We were also concerned about his conduct on the usage of FTP, internet and coming to the office in odd time without management approval. Please refer to the attached document from Jeffrey. …

After Jeffrey’s leaving, I have documented through e-mails the 2nd assignment given to Ramunier. The e-mails were all c.c. to you, please refer to the attached.

Ramunier has been employed as Programmer Analyst for the Durham Warehouse System. He has been informed clearly in the interview that he will be working on the VMS system which will be different from his MVS background. However, from the first few weeks orientation on the VMS environment, he had showed great resistance to learn the VMS environment and expressed negatively against the editor used.

His first assignment was given after he indicated he read through the Durham System documentation and wanted to do some programming work. He was then assigned to write a program to produce a report on Durham Exam-Room Picked Cases in three categories (Conveyable, Non-Conveyable & Accessories). In the course of writing the program, he demonstrated no ability to perform a simple key read to an indexed sequential file. In his resume, he indicated that he had experience with VSAM file (IBM indexed sequential file). Disregarding a lot of help provided that should not have been required for an experienced Programmer Analyst as stated in his resume, the report produced was totally wrong. Instead of cases total for each category, it printed the total record counts for each category. He also failed to verify the test result to confirm the accuracy of the report.

His second assignment was to make simple fix to an existing program on an erroneous data display and data capture resulting from data conversion. Instead of tacking the root of the problem so as to find the solution, he performed patches to the symptom of the problem. He insisted 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 continue to patch. He railed to demonstrate his ability to perform simple testing which was very important before any program’s implemented into 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, Ramunier has demonstrated very weak COBOL programming techniques and no concept of program/unit test. He had not shown any interest to learn the Durham System or the business. He has been very subjective that I do no see he can be a good team player. This weakness also prevented him from listening to other opinion[s] and eventually creates [a] great obstacle to learning anything.

Ramunier failed to prove the skills we required as a programmer analyst and I do not see he has potential to obtain 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 determined that Mr. Filho was not qualified for the job, and should not have been hired in the first place. He stated that he discussed the matter with Ms. Aziz from Human Resources and considered extending Mr. Filho’s probation, but decided that he had not demonstrated the basic skills of the job and an extension of the probationary period would not change that.

On November 22, 2001, Mr. Ramsay, along with Union Representative Moro, met with Mr. Filho and handed him a termination letter. In pertinent part, the letter states:

Dear Ramunier:

As you are aware, your appointment letter dated May 7, 2001 and effective May 28, 2001 advised that you would be appointed to the position of Programmer Analyst and required to complete a six-month probationary period, ending November 28, 2001.

During your probationary period, you were advised both verbally and in writing 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 notifying you that your employment will be terminated effective immediately.

/s/

Gary Ramsay

Director, Applications Systems

The grievor testified that he was surprised by his termination and felt that there was “no reason, basically” for it. He was surprised because he had completed all of his assignments for Mr. Chang and they were promoted into 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 grievor 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 in 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.

In the Bell decision, the Board dealt with an allegation that the employer discharged the grievor, 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 authorities state that a lesser standard of just cause applies to probationary employees. This in my view, is an incorrect use of terminology. A lesser standard of just cause applies to probationary employees only if the collective agreement says so. Article 26.4 of the collective agreement makes no distinction between types of employees with regard to just cause for discipline and dismissal. Therefore, the employer has the onus of proving just cause for the termination of a probationary employee to the usual standard of "balance of probabilities.” However, in assessing whether just cause has been proven in any given case, a number of factors may be taken into account. The employee’s probationary status is such a factor.

In so ruling, the Board was fully cognizant of the purpose of a probationary period – to assess an employee’s performance and suitability for the job. It cited to Re Grace Hospital (1993), 1993 CanLII 16638 (BC LA), 35 L.A.C. (4th) 410 (Bluman), at pp. 20-21, which states, in part:

The fact that an employee is on probation must properly be taken into account in assessing whether the employer has proven “just cause” for her discharge. A probationary employee is by definition “on trial”. The trial period gives the employer an opportunity to assess whether the employer has demonstrated what arbitrator Dorsey has described 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 opportunity to demonstrate such ability but failed to do so, it has met its burden of proving “cause.” It is not a matter of the employer having faced a lesser burden, rather, the fact of probation added a category of “malconduct” which justified termination.

In Bell, likewise, the Board determined 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 determined, however, that although an employer was entitled to an opportunity to assess the employee’s capabilities and potential during the probationary period and that this review constituted a legitimate employer purpose, it held that the employer must administer the probationary period 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 period 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 during the probationary period.

(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 discriminatory 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 Union contends that the employer failed to administer Mr. Filho’s probationary period 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 grievor was not suitable for the position of Programmer Analyst, Systems Officer 3, and that it conducted Mr. Filho’s probationary period 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 period 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 experience Programmer Analyst.

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 grievor testified that the headhunter who recruited him provided him with a job description. He was further informed about the job duties during 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 junior position and required “more than basic programming and analytical skills.” Mr. Filho knew, when he was hired, that he would be working as an experienced 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 majority of his information about the job came during the hiring 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.

Finally, the fact that the position for which Mr. Filho was hired was an intermediate-level Programmer Analyst is very significant. 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 grievor’s assertion that his orientation “didn’t happen” is not supported by the evidence. Clearly, the grievor received substantial orientation 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 varies from that of Mr. Filho, I credit Ms. Chu’s testimony. I found her recollection of Mr. Filho’s orientation, and what she did, to be significantly more precise than Mr. Filho’s recollection.

The fact that Ms. Chu did not provide Mr. Filho with a written orientation plan does not undermine the thoroughness of the orientation. Based on his resume and their discussions, Ms. Chu was well aware of the areas pertaining to VMS that the grievor lacked and took steps to address those technical areas as well as to generally orient the grievor to the business. Further, the grievor received the same type of orientation 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 orientation workplan. There is no requirement in the collective agreement or the jurisprudence to have a such a written orientation 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 initially 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 bring 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 grievor. Training regarding the basic skills of the job was not required. Indeed, the probationary period is designed to determine if an employee has those basic skills.

The fact that the grievor was left on his own to read through various manuals and to “play” with the programs provided in order to learn the LCBO’s system does not amount to a failure to orient or instruct him. A certain amount of self-learning for an experienced Programmer Analyst is reasonable. At all times, he was provided with assistance from Angela Xue and took full advantage of that opportunity to ask her questions and seek assistance. He also had the opportunity 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 grievor and Ms. Chu. There is no evidence, however, that Ms. Chu failed to provide the grievor with reasonable assistance – coaching and instruction – during the period he worked for her as a result of that antipathy or otherwise.

I also conclude that the period during which Mr. Filho was without a fully working computer did not undermine his orientation. The evidence does not support the grievor’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 Friday of the following week. Even assuming he could not practice on the Editor during this time, there were many other things he could have done. Further, his orientation lasted a full month and was concluded only when he indicated that he was bored and wanted to try an assignment. His orientation 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 right away and it was.

The evidence also establishes that Ms. Chu provided more than just criticism to the grievor. She provided instruction and guidance – and the grievor ignored her. A clear example of this is the grievor’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 grievor responded by insisting that he did find the “root of the problem” 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 grievor did not perform this type of testing.

Guidance and instruction were also provided in relation to the grievor’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 orientation, assignments, guidance and feedback, and that she fulfilled that role.

In regard to the orientation provided by Ms. Chu, I find it significant that Mr. Filho never complained about his orientation or lack of guidance to Ms. Chu or management. He had many opportunities 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 orientation. It was only after the fact, after his termination, that the grievor complained that his orientation “never happened.”

The evidence further establishes that the grievor was provided reasonable assistance, through coaching and instruction, during the period he received assignments from Mr. Chang. While there was no orientation to the “A” system, an IBM- MVS system, the grievor’s background was in that type of system. He had also already been oriented to the operations and business systems of the warehouse. Further, Mr. Filho testified that he received significant 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 significant 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 unit employees, nor did the Union 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 appropriate 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 grievor 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 grievor was advised that he was not performing his duties as a Programmer Analyst satisfactorily and was given a reasonable time to correct them. The Employer could have been, and should have been, more explicit with the grievor particularly during the last three months of his probationary period. But, overall, I conclude that the Employer’s dissatisfaction with the grievor’s performance was made known to him, and he was provided with a reasonable opportunity to improve.

The evidence was very clear that Ms. Chu was highly dissatisfied with the grievor’s performance and communicated that dissatisfaction to him. Although the grievor, at various times 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 grievor 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 grievor that Ms. Chu was not assigning 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 grievor’s performance.

Mr. Ramsay should have been more explicit with the grievor – 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 temporarily fallen to Mr. Ramsay, and he was travelling a lot. As a result, the grievor believed that his receiving assignments from Mr. Chang occurred because of the complaints he made to the Union and through the Union, 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 grievor, 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 opportunity 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 Union 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 significant 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 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 grievor that his results were incorrect.

In this area, I credit the testimony of Mr. Chang over that of the grievor. The e-mails concerning the three assignments show that the grievor’s work was not “excellent” and without problems, as he claimed. On the first assignment, the grievor did not provide his target dates as requested, he did not leave the original 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 grievor which he conveyed to the grievor, leading to the “[f]inally the results look good” e-mail. The grievor acknowledged that this was a critical e-mail from Mr. Chang. Even then, the grievor failed to include the information for the IWT’s, as originally requested. Finally, in terms of the last assignment, the grievor 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 grievor’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 grievor’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 opportunity 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 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 during their probationary period 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 grievor, the grievor’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 discriminatory fashion. Ms. Chu was clearly frustrated with the grievor’s performance and lack of basic skills, but she did try to work with the grievor. She provided instruction and guidance, which was rejected by the grievor, at times in a highly antagonistic 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 99999.99.” It may well be that, after the second assignment, Ms. Chu gave up on the grievor, but the employer did not. Mr. Chang was directed to assign work to the grievor.

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 appropriate. 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 assignments appear to be well within the responsibilities of an experienced Programmer Analyst and a fair assessment of the grievor’s abilities.

There is no evidence that the Employer treated Mr. Filho’s probationary period 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 during Mr. Filho’s probation there were clearly gaps in his assignments. The grievor’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 ½ weeks. During that time, however, the grievor 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 discriminatory 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 during the second and third weeks of August. During this time, Mr. Filho did appear to “fall through the cracks” as the Union asserts, but these gaps do not, under the facts of this case, demonstrate bad faith or discriminatory treatment. The probationary period was sufficiently long, despite these gaps, to provide a full and fair assessment of the grievor’s abilities. 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 grievor failed to meet the expected standard and that the grievor 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 similarities to Re West Kootenay Power & Light Co. and Office & Technical Employees’ Union, Local 378 (1989), 1989 CanLII 9375 (BC LA), 4 L.A.C. (4th) 172 (Greyell) cited by the Employer. In that case, the grievor was hired as a programmer/analyst. There, as here, the employer was seeking an experienced programmer/analyst who had the skills, after a reasonable familiarization period, to assume programmer/analyst responsibilities. Although the grievor had never seen the posting, he was aware that the employer was seeking an experienced individual. The grievor, 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 grieved, and the arbitrator ruled that the employer had to establish “just and reasonable cause.”

The arbitrator found that the grievor’s orientation, which consisted of his spending two hours with a colleague being briefed on the employer’s operations, was “lacking”, and that the employer hired the grievor realizing that he did not meet all of the requirements originally set for the position. Nevertheless, the arbitrator ruled, at p. 188, that “the grievor, when he applied for the position, was aware that he was to bring the expertise of a senior programmer/analyst to the position.” The employer devised a test to assess the grievor’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 grievor did not successfully complete the evaluation. He did not complete the project by the deadline. He spend 25 hours writing 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 grievor’s abilities. The arbitrator stated at p. 189:

Having regard to the grievor’s knowledge of the job requirements (i.e., an experienced 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 written by the grievor into the computer, I am of the view the test was eminently fair. The grievor simply has not demonstrated that he has the skills he said he had during the course of the hiring process. During that process Mr. Parent and the grievor had established a mutual level of expectation of the job requirements and skills to be exercised by the grievor. The grievor was aware the employer was searching for an experienced programmer/analyst. He held himself out as possessing those basic skills. In my opinion, the grievor fell considerably short of meeting a reasonable skill level for the position.

The same conclusions are applicable here. The grievor, Mr. Filho, was a new employee on probation – the period 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 job 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 experienced programmer/analyst. Unlike the situation in Re West Kootenay Power & Light Company, supra, Mr. Filho was given a full orientation 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 time and opportunity 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 orientation period and made a reasonable conclusion that he failed to meet the expected standards of an experienced Programmer Analyst. I conclude that the Employer had established, on the balance of probabilities, just cause to dismiss Mr. Filho.

For these reasons, the grievance must be dismissed.

Issued at Toronto this 27th day of August, 2003.