Policy #78

Disciplinary Policy and Procedures for SPA Employees

An SPA employee of Western Carolina University, regardless of occupation, position, or profession, may be warned, demoted, suspended, or dismissed by the appropriate supervisor or authorized university representative. The degree and type of action taken shall be based upon the sound and considered judgement of the supervisor and in accordance with the guidelines included in this policy.

It is the University's intent that the disciplinary process be administered fairly and consistently and provide for similar treatment of persons in similar situations. Inconsistent use of discipline in similar situations can cause poor morale, grievances, and lawsuits. Records of all disciplinary actions taken will be maintained in the Office of Human Resources and reviewed quarterly to insure that the disciplinary process is being administered fairly and is free of unlawful discrimination. Records and reports regarding disciplinary actions and the disciplinary process will be submitted by the Office of Human Resources to the Office of State Personnel and other appropriate authorities as requested.

Disciplinary actions become inactive or void eighteen months from the date of the action if no further disciplinary action or extension has occurred, or it is removed by the University due to the determination that the issue addressed by the warning or other disciplinary action has been resolved. Once a disciplinary action has become inactive, it can no longer count towards the number of prior disciplinary actions needed for further action.

Note: Supervisors should contact the Office of Human Resources prior to initiating any formal disciplinary action. This includes written warnings, suspensions without pay, demotions, and/or dismissals.

Covered Employees

The provisions of this policy apply to career state employees as defined by the State Personnel Act and, to the extent described below, to employees who have completed their probationary period and have become permanent employees of 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.

Supervisors are encouraged to follow this policy when it is necessary to discipline a non-career status employee. Just cause is not required, however, to dismiss, suspend or reduce in pay or position any SPA employee who is not a career state employee.

This policy does not apply to employees who are exempt from the State Personnel Act (EPA).

Provisions for Probationary Employees

This policy does not apply to probationary employees. However, the supervisor is responsible for coaching and assisting a probationary employee in achieving a satisfactory performance level. Progress should be reviewed periodically. If it is determined that a probationary employee is not suited for the job and cannot be expected to meet acceptable standards, the employee should be separated before the end of the probationary period. A probationary employee may be dismissed without prior warning for either job performance or conduct reasons. The employee must receive written notice of separation indicating the specific behavior(s) or deficiencies which led to his/her separation. This notice must be reviewed by the Office of Human Resources before delivery to the employee. An employee with a probationary appointment has no grievance or appeal rights under the University or State Personnel Policy for termination or disciplinary actions taken against him/her, except for appeals on the basis of illegal discrimination.

Basis for Disciplinary Action

Disciplinary action may only be taken for actions which fall into one of three categories:

1. unsatisfactory job performance
2. grossly inefficient job performance
3. unacceptable personal conduct

Unsatisfactory Job Performance

Unsatisfactory job performance is work-related performance that fails to satisfactorily meet job requirements as set out in the relevant job description and work plan, or as directed by the immediate supervisor, supervisor of the work unit or university management.

The determination of unsatisfactory performance is generally made by the immediate supervisor. The supervisor's determination should be reasonable, proper, and factually supported. In determining whether an employee's job performance is unsatisfactory, a supervisor should consider any one or a combination of the factors set forth below:

• the quality of work
• the quantity of work
• work habits
• promptness
• the timely performance of work
• related analysis, decisions, or judgement
• the accuracy of work
• the performance or work plan appraisal
• absenteeism
• ability to follow instructions, directions, or procedures
• the appropriateness of work performed
• any other factors, that, in the opinion of the supervisor, are appropriate to determine whether an employee's performance constitutes unsatisfactory job performance.

NOTE: A performance-based disciplinary action becomes inactive or void when the summary performance rating is good or above and a rating of good or above is given in the performance area cited in the disciplinary action.

Grossly Inefficient Job Performance

Grossly inefficient job performance is created when unsatisfactory job performance causes death or serious injury, or when unsatisfactory job performance causes a serious loss or damage to state property or funds.

When an employee fails to obtain or maintain legally required certificates, licenses, bonds, or other credentials, this is treated as grossly inefficient job performance.

Unacceptable Personal Conduct

Unacceptable personal conduct may attend to intentional or unintentional acts committed while on duty or intentional or unintentional acts committed while off duty that are connected significantly to the employee's job. Examples of acts which constitute unacceptable personal conduct are as follows:

• offensive conduct for which no reasonable person should expect to receive prior warning; or
• conduct that is job related which violates state or federal law; or
• an act resulting in conviction of a felony or an offense involving moral turpitude that is detrimental to or impacts the employee's service to the State; or
• an act that is a willful violation of known or written work rules; or
• conduct that is unbecoming to a state employee and detrimental to State service; or
• the abuse of client(s), patient(s), student(s), or person(s) over whom the employee has charge over to whom the employee has a responsibility or abuse of an animal owned by the State; or
• absence from work after all authorized leave credits and benefits have been exhausted; or
• falsification of a State application or any other employment documentation.

Insubordination is also considered to be unacceptable personal conduct. Insubordination is defined as the willful failure or refusal to carry out a reasonable order from an authorized supervisor.

Note: There are some actions or behaviors which fall into a "gray area" between job performance, personal conduct, and grossly inefficient job performance and could easily be considered in either category. The Office of Human Resources can assist in determining the appropriate category for the disciplinary action. This is essential because the application of appropriate disciplinary action is often dependent upon correct determination of the basis for discipline.

Types of Disciplinary Action

The types of disciplinary action include

• Written
• Warning
• Disciplinary Suspension Without Pay
• Demotion
• Dismissal

Note: The Office of Human Resources will provide guidance as to the appropriate disciplinary action and must be consulted prior to any disciplinary action being taken.

Written Warning

• All disciplinary warnings must be in writing.
• All written warnings must specifically state that the document is a "written warning" so as to distinguish the document from some other type of non-disciplinary action, such as counseling, guidance, or directions.
• A written warning must tell the specific performance or conduct improvements that must be made.
• A written warning should normally tell the time frame within which the employee must show improved performance or conduct. (Note: In matters of unacceptable personal conduct, the supervisor may require that the conduct not be repeated again.)
• A written warning should tell the consequences of failing to make the required improvements or corrections (i.e., further disciplinary action, dismissal, etc.).
• A copy of the written warning should be given to the employee, a copy sent to the Office of Human Resources, and a copy maintained in the supervisor's file.
• The immediate supervisor or the next level supervisor will meet with the employee in a private conversation to review the written warning.

Disciplinary Suspension Without Pay

Disciplinary suspension without pay may be imposed without prior warning or prior disciplinary action when unacceptable personal conduct or grossly inefficient job performance occurs. Prior to initiating disciplinary suspension without pay, a pre-disciplinary conference must be held (see pre-disciplinary conference section below).

A disciplinary suspension without pay for an employee who is subject to the overtime compensation provisions of the Fair Labor Standards Act (FLSA) must be for at least one full work day, but may not be for more than two work weeks. The length of a disciplinary suspension without pay for an employee who is exempt from the overtime compensation provisions of the FLSA must be for at least one full work week, but may not be for more than two full work weeks.

Demotion

An employee may be demoted for either unsatisfactory job performance, grossly inefficient job performance, or unacceptable personal conduct. An employee may be demoted for a current incident of unsatisfactory job performance after the employee has received at least one prior active warning or disciplinary action. An employee may be demoted for grossly inefficient job performance or unacceptable personal conduct without any prior warning or disciplinary action.

Normally, demotion involves lowering the employee's salary while the employee retains the same salary grade. In certain instances, an employee's salary grade can be lowered, with or without lowering the salary. Prior to demotion, the employee and the supervisor and/or other authorized university representative must have a pre-disciplinary conference (see section below on pre-disciplinary conference).

Dismissal

An employee may be dismissed for unsatisfactory job performance, grossly inefficient job performance, or unacceptable personal conduct.

In order to dismiss an employee for unsatisfactory job performance, an employee must have received at least two prior active warnings or other disciplinary actions (or one warning and one other disciplinary action) in addition to the current incident.

An employee may be dismissed for a current incident of grossly inefficient job performance or unacceptable personal conduct without any prior disciplinary action.

Prior to a dismissal, the employee and supervisor and/or other authorized university representative must hold a pre-disciplinary conference (see section below on pre-disciplinary conference).

Pre-Disciplinary Conference

Prior to dismissing, demoting, or suspending an employee without pay for disciplinary reasons, the employee's vice chancellor or the vice chancellor's designee must hold a pre-disciplinary conference with the employee. The employee must be given written notice of the pre-disciplinary conference which should include time, location, the type of disciplinary action being considered, and a brief statement of the acts or failures that led to the conference. Only the supervisor, other university representative (if appropriate), and the employee would normally attend the conference, although at the option of the university, security personnel may attend. Attorneys may not attend. The employee should receive as much advance notice of the conference as is practical under the circumstances.

During the conference, the employee will be given written notice of the reasons for the recommended disciplinary action. The employee will be given an opportunity to respond with information on the proposed disciplinary action and offer facts that are different than those offered by management. The employee does not have the right to have witnesses present.

Disciplinary Actions Taken After Pre-Disciplinary Conference

Prior to imposing any action, the disciplinary action must be documented in writing by the supervisor or authorized university representative and approved by the appropriate vice chancellor and Director of Human Resources.

After the pre-disciplinary conference is held, the person who conducted the meeting shall review and consider the response of the employee and make a decision on the type of discipline, if any, that will be imposed. If the meeting was conducted by a vice chancellor's designee, the vice chancellor may reserve the right to make the final decision after discussing the matter with the designee.

If a decision is made to follow through with the discipline (dismissal, disciplinary suspension without pay, or demotion) this decision shall be communicated to the employee in writing no earlier than the start of the next business day.

If the decision is made to dismiss the employee, the decision should be given in person or may be communicated by certified mail. When dismissal is for unsatisfactory job performance the effective date of the dismissal shall be no sooner than the date of the written notice and no later than 14 calendar days after the written notice. The University may grant an employee wages in lieu of the 14-day notice or any part of that notice.

The disciplinary letter (dismissal, disciplinary suspension without pay, or demotion) must contain the following:

• the reason for the action;
• the effective date of the action; and
• any applicable appeal rights the employee may have.

Prior to delivery to the employee, the University's Legal Counsel must review the disciplinary letter.

Right of Appeal

The appeal rights for disciplinary actions for career employees and permanent employees are different and are specifically set out in the Western Carolina University Grievance Policy and Procedures for SPA Employees. Career employees enjoy appeal rights both through the internal grievance process and to the State Personnel Commission. Permanent employees, who have not attained career status according to the requirements set out in the State Personnel Act, have limited appeal rights through the internal grievance process, but not outside the University unless the disciplinary action is alleged to be based on illegal discrimination.

Employees will be informed in writing of the appeal rights they have for disciplinary action taken against them. The employee will receive a copy of the University grievance procedure attached to the written documentation of any grievable disciplinary action.

The employee is deemed to have waived the right to contest the validity of a grievable warning or disciplinary action if the employee fails to grieve in a timely manner.

Investigatory Placement with Pay (NOTE: This is not a disciplinary action.)

An employee may be placed in investigatory status with pay only for the following reasons:

• to investigate allegations of performance or conduct deficiencies that would constitute just cause for disciplinary action; or
• to provide time within which to schedule and conduct a pre-disciplinary conference; or
• to avoid disruption of the work place and/or to protect the safety of persons or property.

The employee shall be given written notice of the reasons for the investigatory placement no later than the second scheduled workday after the beginning of the placement. An investigatory placement may last no longer than 30 calendar days without the written approval of the extension by the Chancellor and the State Personnel Director. The employee shall be given written notice of the extension, the length of time of the extension, and the specific reasons for the extension. At the end of the thirty day period and if further extension has not been granted, either appropriate disciplinary action on the basis of the investigatory findings must be taken or the employee must be returned to active work status.

Initially approved July 9, 2001
Administering office: Human Resources

Posted July 30, 2001