Initially approved July 9, 2001
Administering Office: Human Resources
PURPOSE
It is Western Carolina University's policy to provide a means of communication between supervisors and employees and establish principles of administration to insure a prompt, orderly and fair response to an SPA employee's grievance. The objectives of this policy are intended to assure that employees can get their complaints considered rapidly, fairly and without fear of reprisal; take steps to ensure costs to process grievances are contained; and, resolve workplace issues efficiently and cost effectively.
POLICY
This policy is consistent with all policies as established by the State Personnel Commission and is administered in a totally equitable manner and is free of any unlawful discrimination.
An employee has the right to present a grievance free from interference, restraint, coercion, or reprisal. An employee shall be allowed time off from regular duties as may be necessary and reasonable up to a maximum of eight hours for the preparation of an internal grievance without loss of pay, vacation leave or other time credits. Employees must notify their supervisor in advance and receive prior approval of the necessity to be absent from work for preparation of the internal grievance.
Upon request, the employee's supervisor shall grant leave for participation as a party in a contested case hearing and other administrative proceedings outside the University in connection with employment, without loss of pay, vacation leave or other time credits. Prior notification and approval is required and employees must document the time needed for this purpose.
Employees may request assistance from the Office of Human Resources (HR) in preparing a written summary of the facts regarding the grievance.
Neither the University nor the employee shall be accompanied by any outside parties (i.e., legal counsel, etc.) during the internal process.
If any deadline falls on a non-workday or any established state holiday, the deadline shall be extended until the next business day.
This policy is not to be used for considering complaints of SPA employees regarding their overall performance approval rating, the amount of any performance increase or a failure to receive a performance increase. These complaints must be processed in accordance with the Performance Pay Dispute Resolution Procedures for SPA Employees.
Warnings, placement on investigatory placement with pay, and extensions of disciplinary actions are not grievable unless the complaint of action is allegedly the result of illegal discrimination or a constitutional violation. Matters relating to written warnings or performance pay dispute and any other matters not specifically set out in the State Personnel Act may not be appealed to the State Personnel Commission.
Matters of inherent management rights are not subject to appeal under this policy. These matters include but are not limited to such areas as the programs and functions of the department, standards of service, the overall university budget, the utilization of technology, and the assignment and reassignment of staff to positions, duty stations and shifts, except where such actions include a demotion to a lower classification or are allegedly the result of illegal discrimination or a constitutional violation.
A reasonable time for the resolution of a grievance is no more than 120 days from the date the initial grievance, as defined in this policy, was filed. This time limit may be extended, if necessary, only with the written consent of the employee.
How to Obtain Information About the Grievance Policy
The Office of Human Resources will provide information and answer questions about the grievance policy. This policy shall be posted in a permanent and conspicuous place in work areas and will be available by contacting the Office of Human Resources or the employee's supervisor. New employees will be informed of the grievance policy and procedures during new employee orientation sessions. Supervisors will be educated about the grievance policy in training sessions conducted by the Office of Human Resources and will in turn communicate information to employees in their respective departments. All employees will be notified of grievance policy and procedure changes through regularly scheduled informational sessions. Employees shall be notified no later than 30 days prior to the effective date of a change.
Role of the Office of Human Resources
The Office of Human Resources will interpret the grievance policy for supervisors and employees. Upon request, HR will provide assistance to employees or supervisors in the processing of or response to grievances. HR will provide technical assistance in ensuring that hearing guidelines are followed and will provide training for members of grievance committees.
The Office of Human Resources will maintain all records on grievances filed within the University for a period of at least 18 months. After that time, records will be maintained as required by state policy. Grievances filed and all related information will be analyzed on an annual basis by demographics, division, and nature of issues grieved to insure that policies and procedures are administered fairly and consistently and follow good employee relations practices. HR will respond to all requests for information regarding grievances and appeals and will report this and other relevant information as requested to the Office of State Personnel and other appropriate authorities.
The Office of Human Resources shall submit this policy for review by the Office of State Personnel on January 1 of each even-numbered year to insure that it is in compliance with current state law and rules.
Covered Employees and Grievable Issues
Career state employees may use these procedures when they want to obtain a review of an action affecting the employee that directly relates to the employee's employment status or otherwise affects the formal relationship with the University, which is allegedly the result of or results in a violation of a policy, procedure or customary practice of Western Carolina University, and can be remedied by the University. A career state employee is one appointed to a permanent position who has been continuously employed by the State of North Carolina in a position subject to the State Personnel Act for the immediately preceding 24 months.
Grievable issues may include but are not limited to:
- Dismissal, demotion, or suspension without pay.
- Denial of promotion due to failure to post.
- Failure to give promotional priority over outside employees.
- Failure to give reduction-in-force (RIF) re-employment consideration.
- Failure to give policy-making/confidential exempt status priority re-employment consideration.
- Failure to follow systematic procedures in reduction in force (not alleging discrimination).
- Denial of veteran's preference in connection with RIF.
Any State employee or former State employee may grieve the following issues:
- Denial of request to remove inaccurate or misleading information from personnel file.
- Policy-making designation.
- Unlawful discrimination in denial of promotion, transfer, or training; or selection for demotion, RIF or termination.
Any applicant for State employment may grieve the following issues:
- Denial of veteran's preference in initial State employment.
- Denial of employment on the basis of illegal discrimination.
Any SPA State employee may grieve the following issues:
- A false accusation about political threats or promises.
This policy does not apply to employees who are exempt from the State Personnel Act (EPA employees).
Discrimination Special Provisions
Any applicant, State employee, or former State employee who has reason to believe that employment, promotion, training or transfer was denied the employee; or, that demotion, reduction in force or termination of employment was forced upon the employee because of age (above 40), sex, race, color, national origin, religion, creed, political affiliation or handicapping condition (disability) except where specific age or sex requirements constitute a bona fide occupational qualification necessary to proper and efficient administration, or where specific physical or mental abilities are necessary to perform the essential functions of the job, shall have the right to appeal through the University grievance procedure or may appeal directly to the State Personnel Commission.
In order to appeal to the Commission, the employee must file a petition for a contested case hearing with the Office of Administrative Hearings within 30 calendar days after receipt of notice of the alleged discriminatory action. If, however, the employee chooses to use the University's grievance procedure, the employee must appeal the alleged discriminatory act within the time frames set by this policy.
Exception for Sexual Harassment: An employee alleging sexual harassment shall have the right to bypass any step involving discussions with or review by the alleged harasser. All grievances involving sexual harassment shall be reported to the Affirmative Action Officer when they are filed.
Inaccurate or Misleading Information in a Personnel File
Any employee, regardless of length of service, who alleges that written information in the employee's personnel file is false or misleading may file a grievance regarding this. In the grievance, the employee must specify the information, which is false or misleading. Any employee may examine his/her personnel file by visiting the Office of Human Resources during regular working hours.
PROCEDURE FOR FILING GRIEVANCES
Step One: Discussion Between Employee and Immediate Supervisor
If an employee has a grievance, it must first be initiated in writing to the immediate supervisor within 15 calendar days of the situation causing the grievance. If the grievance does not fall within the administrative or decision-making authority of the immediate supervisor, the immediate supervisor shall, within 48 hours of receipt of the grievance, refer the grievance to the lowest level supervisor with administrative or decision-making authority over the subject matter of the grievance and notify the employee of the fact of and the basis for referral. If the grievance is not filed within the allowed time period, the matter is no longer grievable and the act which was the subject of the potential grievance shall be presumed valid and proper when considering any subsequent grievances.
The designated supervisor shall discuss the grievance with the employee in private, within ten working days. When the employee meets with his/her supervisor, he/she should be prepared to orally discuss or present in written form what act or acts are being challenged, the basis for the grievance, and the relief requested. When presenting the grievance, a co-worker for personal support may accompany the employee. The supervisor may call higher level supervisors into the discussion if the employee agrees. The supervisor may consult or seek advice from higher level supervisors before answering the grievance.
Within five working days of the discussion with the employee, the supervisor is required to issue a Step One written decision to the employee or advise the employee in writing as to the conditions which prevent an answer within five working days and when an answer may be expected. Along with the written response, the employee shall also receive a copy of the University grievance procedure and appeal rights.
Step Two: Discussion Between Employee and Next Level of Supervision
If the discussions and subsequent decision of the supervisor are not satisfactory, or if an employee fails to receive a response within the designated five working days, the employee may move the grievance to Step Two by notifying the supervisor next in the chain of command. The request shall be made in writing and must be presented within five working days of receipt of the Step One decision or the expiration of the Step One time limit for response.
The supervisor may request documentation or other written explanation from the employee and the immediate supervisor. The supervisor may hold whatever discussions he/she deems desirable. The supervisor may schedule a private meeting with the employee to discuss the grievance. A co-worker for personal support may accompany the employee in the meeting. If the employee agrees, immediate or higher level supervisors may be asked to attend this meeting.
Following a review of all relevant information, the supervisor will issue a Step Two decision. The decision shall be in writing and shall be forwarded to the employee, the immediate supervisor, the respective vice chancellor and the Director of Human Resources within ten working days of receipt of all relevant information. Along with the written response, the employee will also receive a copy of the University grievance procedure and appeal rights.
Step Three: Appeal to the Grievance Committee
If the discussions and subsequent decision of the supervisor are not satisfactory to the employee or if the decision is not promptly rendered, the matter may be appealed to the University grievance committee. Any request for review shall be filed with the Director of Human Resources within five working days after receipt of the Step Two decision. The request shall include a written summary of the specific facts of the complaint, copies of which shall be provided at the same time to all other parties concerned. The employee may ask the Director of Human Resources for help in preparing the request and the written summary of the facts of the appeal.
Upon receipt of the appeal, the Director of Human Resources will form a Grievance Committee. The Grievance Committee will consist of a five-person committee selected by the Director of Human Resources. At the beginning of each academic year and no later than August 31, each vice chancellor and the Assistant to the Chancellor will designate five employees from his or her respective division to serve in the event of a grievance hearing. At the time of a hearing, the Director of Human Resources will select one employee representing each division from the pool of twenty-five.
Three committee members must be SPA non-supervisory employees. No person will be selected if employed within the same department as the grieving employee. The Director of Human Resources is responsible for ensuring that the committee is not made up of entirely supervisory or administrative personnel. The employee shall be allowed the opportunity to eliminate up to two members of the grievance committee if the employee believes that one or more persons can not render an unbiased decision. Once the member(s) is eliminated, the Director of Human Resources shall select a replacement member(s) from the pool. The Director of Human Resources shall preside over the grievance hearing as non-voting chair and will not participate in the decision making process of the committee.
The chair shall notify the employee in writing of the date, time, and location of the hearing. The chair shall also instruct the employee to identify his/her witnesses, if any, in a timely fashion and, in any event, no later than five working days before the hearing. The chair has the authority to limit the number of witnesses scheduled to attend the hearing if it is determined that the proposed witnesses will present unduly repetitive or unnecessarily cumulative evidence. The chair shall coordinate with the witnesses for them to appear at the hearing.
If the grievance does not arise from dismissal, suspension, or reduction in pay or position, the format below will be followed.
The proceedings shall concern whether the employee, as specified in the request for appeal, has established a factual and legal basis for the grievance.
Formal rules of evidence shall not apply; however, the committee has the authority to reject evidence, which is repetitive or has no relevance to the case. The employee or supervisor may not confront or cross-examine each other unless the committee requests that they do so. The employee and supervisor may not remain in the room throughout the proceedings unless the committee requires their presence. The hearing will be private, but an observer may accompany the employee and the responsible supervisor. Attorneys are not authorized to attend the hearing.
The employee presents, through documentation or oral testimony, the basis of the grievance. The supervisor may then present documentation or oral testimony in response. Rebuttal or additional evidence may be allowed or requested by the committee.
Following the presentation of the evidence, the committee shall meet in closed session to consider the grievance. In determining whether the employee has established a factual and legal basis for the grievance and justification for corrective action, the committee will make factual findings based on the evidence and will make a recommendation based on those findings. Its recommendation, whether to reject the grievance or to recommend adjustment or correction, should be forwarded in writing within ten working days of the conclusion of the hearing to the Chancellor. The recommendation is not binding upon the Chancellor and is only advisory. The Chancellor shall inform the employee, the supervisor, the appropriate vice chancellor, and the Director of Human Resources of his/her decision in writing in a reasonable time, within 15 working days. Along with the written response, the employee shall also receive a copy of the University grievance procedure and applicable appeal rights.
If the grievance does arise from dismissal, suspension, or reduction in pay or position, the format below will be followed.
The proceedings shall concern whether the University, as specified in the written notice, established just cause for the disciplinary action.
Formal rules of evidence shall not apply; however, the chair has the authority to reject evidence, which is repetitive or has no relevance to the issues. The employee and supervisor shall have the right to confront and cross-examine witnesses and must be allowed to remain in the hearing room through out the hearing. The hearing will be private and the employee and the responsible supervisor may be accompanied by an observer. Attorneys are not authorized to attend the hearing.
The supervisor shall present, through documentation or testimony, the basis for the disciplinary action. The employee may then present documentation or testimony supporting his/her position. Rebuttal or additional evidence may be allowed or requested by the committee.
Following the presentation of the evidence, the committee shall meet in closed session to consider the grievance. In determining whether the University has shown just cause for the disciplinary action, the committee will make factual findings based on the evidence and will make a recommendation based on those findings. Its recommendation, whether to uphold the disciplinary action or to recommend adjustment or correction, shall be forwarded in writing within ten working days of the conclusion of the hearing to the Chancellor. The recommendation is not binding upon the Chancellor and is only advisory. The Chancellor shall inform the employee, the supervisor, the respective vice chancellor, and the Director of Human Resources of his/her response. Along with the written response, the employee shall also receive a copy of the University grievance procedure and appeal rights, if any.
Step Four: Appeal to the State Personnel Commission
The employee shall be informed in writing from the Chancellor that appeal to the State Personnel Commission (SPC) must be filed within 30 days after the employee receives the Final University Decision (FAD) or after the action which triggers the right of appeal directly to the SPC, and that the appeal to the SPC is made by filing a petition for a contested case hearing with the Office of Administrative Hearings (OAH). The address is:
Office of Administrative Hearings
PO Drawer 27447
Raleigh, NC 27611-7447