Initially approved July 9, 2001
Revised: September 30, 2008
Administering Office: Human Resources
Posted: November 3, 2009
Technical Changes March 13, 2017
Revised: November 1, 2017
I. Policy
Western Carolina University employees are expected to meet performance standards and
conduct themselves appropriately. This policy is intended to provide tools for addressing
employee conduct and performance issues in a reasonable, consistent, and effective
manner.
Any disciplinary action issued in accordance with this policy must be for just cause
under one or more of the three following reasons:
1. unsatisfactory job performance; or
2. unacceptable personal conduct; or
3. grossly inefficient job performance.
II. Covered Employees
This policy applies to employees who have attained career status as defined by North
Carolina General Statute 126-1.1.
III. Employee Assistance Program (EAP)
Prior to or in conjunction with disciplinary action, a supervisor may elect to refer
an employee to the Employee Assistance Program (EAP) as appropriate. Referral to EAP
is not considered a substitute for any disciplinary action.
IV. Just Cause for Disciplinary Action
Unsatisfactory Job Performance: The intent of disciplinary action for unsatisfactory
job performance is to promote improved employee performance. When a documented counseling
session fails to correct employee performance, the manager/supervisor may address
the matter by issuing a formal disciplinary action, the first level of which is a
written warning.
A. What is Just Cause for Unsatisfactory Job Performance?
Any work-related performance issue may establish just cause to discipline an employee
for unsatisfactory job performance. Just cause for a warning or other disciplinary
action for unsatisfactory job performance occurs when an employee fails to satisfactorily
meet job requirements.
Disciplinary actions administered for unsatisfactory job performance are intended
to prompt a permanent improvement in job performance. Should the required improvement
later deteriorate, or other inadequacies occur, the supervisor may deal with this
occurrence of new unsatisfactory job performance with additional progressive disciplinary
action(s).
The determination that an employee has engaged in unsatisfactory job performance is
generally made by the supervisor in consultation with management. The supervisor's
and/or managements' determination should be reasonable, consistent, factually supported
and made in conjunction with the Human Resources Office. In determining whether an
employee's job performance is unsatisfactory job performance, a manager/supervisor
may consider any one or a combination of the factors set forth below. These include
but are not limited to:
1. Failure to produce work of acceptable quality, accuracy, quantity, promptness,
work habits, or by established deadlines;
2. Deficiencies in performance as required in the work plan or as noted in the performance
evaluation;
3. Inability to follow instructions or procedures, appropriateness of work performed,
or demonstrated poor judgement, analysis or decision-making;
4. Insufficient or inappropriate customer service, service delivery, or teamwork;
5. Misuse/abuse of fiscal resources, including a wasteful use of State resources;
6. Absenteeism, tardiness, or other abuses of work time.
7. Any other factors that, in the opinion of the supervisor or manager, are appropriate
to determine whether an employee's performance constitutes unsatisfactory job performance.
B. What is Just Cause for Grossly Inefficient Job Performance?
Just cause to issue disciplinary action for grossly inefficient job performance exists
when: an employee fails to satisfactorily perform job requirements as specified in
his/her job description, work plan, or as directed by the management of the work unit
or University, and that failure results in:
1. death or serious bodily injury or creates conditions that increase the chance for
death or serious bodily injury to an employee(s) or to members of the public or to
a person(s) for whom the employee has responsibility; or,
2. the loss of or damage to State property or funds that results in a serious adverse
impact on the State or work unit.
C. What is Just Cause for Unacceptable Personal Conduct?
Just cause to warn or take other disciplinary action for unacceptable personal conduct
may be created by intentional or unintentional acts. The conduct may be job-related
(on duty) or off
duty so long as there is a sufficient connection between the off duty conduct and
the employee's job.
Unacceptable personal conduct may include but is not limited to:
1. conduct for which no reasonable person should expect to receive prior warning;
2. job-related conduct which constitutes a violation of State or federal law;
3. conviction of a felony or an offense involving moral turpitude that negatively
impacts the employee's service to the State or negatively affects the public's trust
and confidence in the State;
4. the willful violation of known or written work rules;
5. conduct unbecoming a State employee that is detrimental to State service;
6. the abuse of client(s), patient(s), student(s), or person(s) over whom the employee
has responsibility or to whom the employee owes a responsibility, or the abuse of
an animal owned by or in custody of the State;
7. material falsification of a State application or other employment documentation
(to include falsification of work-related documents);
8. use of professional State credentials for personal gain;
9. serious disruption in the workplace;
10. insubordination;
11. subjecting an employee, client, or customer to intentionally discriminatory treatment
or harassment.
V. Types of Disciplinary Action
When just cause exists, any career State employee, regardless of occupation, position
or profession may be warned, demoted, suspended or dismissed by the appointment authority.
The degree and type of action taken shall be based upon the sound and considered judgement
of the University in accordance with this policy and after consultation with the Human
Resources Office.
A. Written Warning
The supervisor shall monitor and promote the satisfactory performance of work assignments
and assure that employees do not engage in unacceptable personal conduct.
Unsatisfactory Job Performance: When the supervisor determines that disciplinary action
is appropriate for unsatisfactory job performance, a written warning is the first
type of disciplinary action that an employee shall receive. However, as referenced
in the Performance Management policy, the manager/supervisor shall provide feedback
to the employee regarding the need for him/her to improve his/her performance. If
performance does not improve following the feedback provided by the manager/supervisor,
a Documented Counseling Session (DCS) shall be
issued prior to beginning disciplinary actions for most performance issues. Any disciplinary
action issued for unsatisfactory job performance without a prior DCS must first be
approved by the HR Director or designee. After the first written warning, a supervisor
may give additional written warnings or a higher level of disciplinary action.
Unacceptable Personal Conduct or Grossly Inefficient Job Performance: The supervisor
may elect to issue a written warning for grossly inefficient job performance or unacceptable
personal conduct. However, this policy does not require a written warning before management
takes other disciplinary action in these types of cases.
All written warnings shall:
1. inform the employee in writing that this is a written warning, and not some other
non- disciplinary process such as counseling;
2. inform the employee of the specific issues that are the basis for the warning;
3. tell the employee what specific improvements, if applicable, shall be made to address
these specific issues;
4. tell the employee the time frame allowed for making the required improvements or
corrections. Absent a specified time frame, 60 days is the time frame allowed for
correcting unsatisfactory job performance and immediate correction is required for
grossly inefficient job performance or unacceptable personal conduct; and
5. tell the employee the consequences of failing to make the required improvements
or corrections.
B. Disciplinary Suspension without Pay
An employee may be suspended without pay for disciplinary purposes for unsatisfactory
job performance after the receipt of at least one prior disciplinary action, or for
causes relating to any form of unacceptable personal conduct or grossly inefficient
job performance without any prior disciplinary action. Prior to placing an employee
on disciplinary suspension without pay, a management representative shall conduct
a pre-disciplinary conference with the employee in accordance with the procedural
requirements of this policy.
Length of Time for Disciplinary Suspension
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 not more than two work weeks (ten work days). 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 (five
work days), but not more than two full work weeks (ten work days). The length of a
disciplinary suspension for an employee on a non-forty-hour week/schedule shall be
no more than 80 hours.
The university has the option of imposing the same periods of disciplinary suspension without pay upon all employees as long as the time period is the same as for employees exempt from the overtime provisions of the FLSA as set forth in this Section.
Type of Employee Minimum Period for Disciplinary Suspension Maximum Period for Disciplinary
Suspension Minimum Time Block
Subject to FLSA 1 work day 2 work weeks (10 work days) At least 1 work day
Exempt from FLSA 1 work week (five work days) 2 work weeks (10 work days) 1 work week
(five work days) but no portion of a full work week.
C. Demotion
Any employee may be demoted as a disciplinary measure. Demotion may be made based
on unsatisfactory job performance, grossly inefficient job performance or unacceptable
personal conduct. An employee may be demoted for disciplinary purposes for unsatisfactory
job performance after the receipt of at least one prior disciplinary action, or for
causes relating to any form of unacceptable personal conduct or grossly inefficient
job performance without any prior disciplinary action.
Prior to demoting an employee, a management representative shall conduct a pre -disciplinary
conference with the employee in accordance with the procedural requirements of this
policy.
Disciplinary demotions must be conducted in accordance with the appropriate salary
administration policies.
D. Dismissal
Dismissal may be a result of unsatisfactory job performance, grossly inefficient job
performance or unacceptable personal conduct. An employee may be dismissed for disciplinary
purposes for unsatisfactory job performance after the receipt of at least two prior
disciplinary actions, or for causes relating to any form of unacceptable personal
conduct or grossly inefficient job performance without any prior disciplinary action.
Prior to dismissing an employee, a management representative shall conduct a pre -disciplinary
conference with the employee in accordance with the procedural requirements of this
policy.
Required Consultation: The supervisor recommending dismissal must discuss the recommendation
with appropriate university management, including Human Resources. Upon approval by
agency management, a pre-disciplinary conference shall be held with the employee.
VI. Procedures for Issuing Disciplinary Action
Prior to the decision to issue a disciplinary action, the following procedures must
be followed in accordance with this policy. Before a manager/supervisor can issue
a disciplinary action of suspension, demotion, or dismissal, a Pre-Disciplinary Conference
(PDC) must be held. A PDC is not required if management intends to issue a written
warning.
Prerequisites for Disciplinary Action
Unsatisfactory Job Performance Unacceptable Personal Conduct or Grossly Inefficient
Job Performance
1. The employee must have a current unresolved incident of unsatisfactory job performance.
2. Demotion or suspension: the employee must have at least one active disciplinary
action (these do not need to be related to the current incident).
3. Dismissal: the employee must have at least two active disciplinary actions (these
do not need to be related to the current incident). *
4. A Pre-Disciplinary Conference (PDC) must have been held with the employee. 1. The
employee must have a current unresolved incident of unacceptable personal conduct
or grossly inefficient job performance.
2. A Pre-Disciplinary Conference (PDC) must have been held with the employee.
* Disciplinary actions related to personal conduct may be included in the successive
system for performance-related dismissal provided the employee receives at least the
number of disciplinary actions, regardless of the basis of the disciplinary actions,
required for dismissal based on unsatisfactory job performance.
A. Active Disciplinary Actions
Disciplinary actions issued for unsatisfactory job performance, grossly inefficient
job performance, or unacceptable personal conduct are all subject to becoming inactive
for the purposes of counting towards the number of prior disciplinary actions needed
for further discipline. Disciplinary actions are deemed inactive if:
1. the manager or supervisor notes in the employee's file that the reason for the
disciplinary action had been resolved or corrected;
2. the purpose of a performance based disciplinary action has been achieved, as evidenced
by a summary performance rating at an acceptable level or better and satisfactory
performance in the area cited in the disciplinary action; or
3. 18 months have passed since the disciplinary action, and the employee does not
have another active disciplinary action which occurred within the last 18 months.
If an employee receives a new disciplinary action while he/she has an active disciplinary action in his/her personnel file, the oldest active disciplinary action(s) in the file will take on the life span of the most recent disciplinary action, not to exceed an additional 18 months (that is, the action cannot remain active for more than 36 months). The actions do not have to be related in content.
VII. Procedures for Pre- Disciplinary Conference (PDC)
A. Prior to the Conference -
Before demotion, suspension or dismissal of an employee:
• A supervisor or management designee must schedule and conduct a Pre-Disciplinary
Conference (PDC) after discussing his/her recommendation with the appropriate university
management and receiving management's authorization to hold the PDC;
• The supervisor or management designee must give the employee advance written notice
(at least 24 hours) of the conference. While a minimum of twenty-four (24) hours'
notice to the employee is required, advance notice should be as much time as practical
under the circumstances;
• The notice must inform the employee of the type of disciplinary action being considered
(demotion, suspension or dismissal), that a lesser disciplinary action is possible,
the conference time and location, and the specific acts or omissions that are the
reasons for the recommendation;
• If a demotion is being considered, the supervisor must inform the employee if the
demotion may change the employee's compensation rate or classification title.
• The person conducting the pre-disciplinary conference must have the authority to
recommend or decide what, if any, disciplinary action should be issued to the employee.
The following people may be included in the conference:
• The supervisor or other person chosen by university management to conduct the conference;
• A second management representative may be present at management's discretion;
• The employee;
• If the person conducting the conference chooses, security may be present;
• In addition to the participants in the conference noted above, one additional neutral
party may be present, if agreed upon by the employee and management.
Legal Representation: No attorneys representing either side may attend the conference nor shall any witnesses attend the conference for either party. This provision does not prevent either party from consulting with legal representation.
Employee Absence: The employee's failure to attend the PDC after receipt of written notification shall not automatically stop the disciplinary process. In such situations, management must consult with Human Resources to determine whether rescheduling the PDC is warranted.
Recordings: Audiotape, videotape, recording devices, and transmission devices are not permitted during the conference.
B. During the Conference -
During the conference, the person conducting the conference must:
• Give the employee written notice that the PDC cannot be recorded by either party
or attended by attorney representatives;
• Give to the employee written notice of the recommendation for demotion, suspension
or dismissal, including the specific reasons for the proposed disciplinary action
and a summary of the facts supporting the recommendation; and
• Give to the employee an opportunity to respond to the recommended disciplinary action,
offer facts that are different from those offered by management and offer facts in
support of the employee's position. This policy does not give an employee the right
to have witnesses present at the conference.
C. Following the Conference -
After the conference, management shall:
• Review all necessary information, consider the response of the employee, and decide
on the recommended disciplinary action;
• Allow time to review all necessary information and not communicate the decision
to the employee prior to the beginning of the next business day following the conclusion
of the pre-disciplinary conference or after the end of the second business day following
the completion of the pre-disciplinary conference; and
• If management decides to demote, suspend, or dismiss the employee, then the employee
shall receive a written disciplinary action letter either in person or by certified
mail (or equivalent) with return receipt requested.
The written disciplinary action letter must include:
1. The basis for the disciplinary action;
2. The effective date of the disciplinary action;
3. The specific acts or omissions that are the reason(s) for the disciplinary action;
4. The employee's right to appeal and a copy of the grievance policy.
Effective Date: The effective date of the dismissal for unsatisfactory job performance
shall be determined by management. A career state employee who is dismissed for unsatisfactory
job performance may, at management's discretion, be given up to two weeks' working
notice of the dismissal. Instead of providing up to two weeks' working notice, an
employee may be given up to two weeks' pay in lieu of the working notice. Such working
notice or pay in lieu of notice is applicable only to dismissal for unsatisfactory
job performance. The effective date of the dismissal shall be no sooner than the date
of the written notice of dismissal and no later than 14 calendar days after the written
notice.
D. Failure to Follow Procedure
Failure to give written reasons for the demotion, suspension, or dismissal, written
notice of appeal rights, or to conduct a pre-disciplinary conference is a procedural
violation. If the university fails to follow procedure, the university shall be subject
to the rules of the Commission dealing with procedural violations.
The time for filing a grievance because of the demotion, suspension, or dismissal
does not start until the employee receives written notice of any applicable appeal
rights.
E. Public Information
If an employee is dismissed and appeals his/her dismissal through the grievance procedure,
the final university decision shall set forth the specific acts or omissions that
are the basis of the employee's dismissal. In addition, the employee shall be informed
in the final university decision letter that the final university decision letter
is a public record and that the university is required by law to release it pursuant
to any public record requests.
F. Additional Pre-Disciplinary Conference
An additional pre-disciplinary conference may be necessary if the employer receives
new information about the allegations of wrongdoing that requires additional investigation.
When a pre-disciplinary conference is conducted for a recommended type of disciplinary action, but after the conference, the agency decides to take disciplinary action of a lesser degree of seriousness than the one for which the conference was held, it is not required that the university conduct an additional pre-disciplinary conference as long as the employee was notified and had the opportunity to be heard with respect to the behavior which is the basis for the less serious disciplinary action.
However, it is permissible for the university to conduct such an additional pre-disciplinary
conference if the university determines that it would be appropriate under the circumstances,
or if the employee requests the additional opportunity to be heard.
For example, if a pre-disciplinary conference is conducted with a recommendation or
intent of dismissal and the university decides to demote rather than dismiss, it would
not be necessary to conduct another pre-disciplinary conference unless the univeristy
or employee believes that there are relevant issues that could not have been addressed
or were not addressed in the previous pre-disciplinary conference or, if the employee
was not notified of the possibility of a lesser degree of disciplinary action.
VIII. Transfer of Disciplinary Action
When an employee transfers to another department or unit, any active written warnings
or disciplinary actions will transfer with the personnel file of the employee and
will remain in full force at the new work unit until removed by the new employer or
made inactive by operation of this policy.
IX. Investigatory Leave with Pay
Investigatory leave with pay shall be used to temporarily remove an employee from
work status. Placement on investigatory leave with pay does not constitute a disciplinary
action. However, the information discovered during the investigation may be the basis
of disciplinary action.
A. Procedures for Placing an Employee on Investigatory Leave with Pay
• Management must notify an employee in writing of the reasons for placement on investigatory
leave with pay status no later than the second scheduled workday after the beginning
of the placement. A placement on investigatory leave with pay may last no more than
thirty (30) calendar days without written approval of an extension by the State Human
Resources Director (of no more than an additional 30 calendar days).
• When an extension beyond the thirty-day period is required, the university must
advise the employee in writing of the extension, the length of the extension, and
the specific reasons for the extension. If no action has been taken by the university
by the end of the thirty-day period and no further extension has been granted, the
university must either take appropriate disciplinary action based on the findings
from the investigation or return the employee to active work status.
• Under no circumstance is it permissible to use placement on investigatory leave
with pay for the purpose of delaying an administrative decision on an employee's work
status pending the resolution of a civil or criminal court matter involving the employee.
B. Acceptable Reasons for Placing an Employee on Investigatory Leave with Pay
An employee may be placed on investigatory leave with pay for the following reasons:
• To investigate allegations of performance or conduct deficiencies that would constitute
just cause for disciplinary action;
• To provide time within which to schedule and conduct a pre-disciplinary conference;
• To avoid disruption of the work place and/or to protect the safety of persons or
property;
• To facilitate a management directed referral or fitness for duty evaluation to ensure
the employee's safety and the safety of others and to obtain medical information regarding
the employee's fitness to perform his or her essential job functions.
X. Right of Appeal
Every disciplinary action shall include notification to the employee in writing of
any applicable appeal rights.
The university shall furnish to the employee, as an attachment to the written documentation
of any grievable disciplinary action, a copy of the Grievance Policies and Procedures
for SHRA Employees.
A. Waiver of Appeal Rights
If a disciplinary action is grievable, and the employee fails to timely grieve the
disciplinary action, the employee is deemed to have waived the right to contest the
validity of the disciplinary action.
XI. Policy Responsibilities
A. University
Through the supervisor, the university shall:
1. Assure the satisfactory performance of work assigned to an employee of the work
unit. The supervisor's determination of what is satisfactory is presumed to be reasonable
and factually supported;
2. Maintain and communicate an expectation of acceptable personal behavior by its
employees;
3. Initiate a disciplinary action when in the judgement of the supervisor the employee
has engaged in behavior prohibited by this policy;
4. Maintain records and provide to the Office of State Human Resources information
and statistics on the discipline and dismissal process in a form prescribed by the
Office of State Human Resources; and
5. Have personnel trained in the administration of this policy.
B. Office of State Human Resources
The Office of State Human Resources shall:
1. Provide for training in the administration of this policy;
2. Provide technical assistance and advice to agencies and universities;
3. Review university compliance;
4. Establish reasonable benchmarks for program performance; and
5. Report and make recommendations to the State Human Resources Commission on the
discipline process.
C. State Human Resources Commission
The State Human Resources Commission shall:
1. Identify corrective measures on any agency that:
a. Fails to comply with this policy;
b. Fails to report in a format prescribed by the Office of State Human Resources;
or
c. Fails to administer the discipline and dismissal process in a manner that is fair
to all parties, equitable, free of unlawful discrimination, and maintains discipline.
XII. Credentials
By statute, regulation, and administrative rule, some duties assigned to positions
in service may be performed only by persons who are duly licensed, registered, or
certified as required by the
relevant law or policy. All such requirements and restrictions are specified in the
statement of essential qualifications or recruitment standards for job classifications
established by the State Human Resources Commission.
Failure to obtain or maintain legally required credentials can be dealt with as disciplinary
action, or through the Separation Policy of the Office of State Human Resources.
A. Falsification of Credentials
Falsification of employment credentials or other documentation about securing employment
constitutes just cause for disciplinary action. When credential or work history falsification
is discovered after employment with the university, disciplinary action shall be administered
as follows:
1. If an employee was determined to be qualified and was selected for a position based
on falsified work experience, education, registration, licensure, or certification
information that was a requirement of the position, the employee may be dismissed
without warning following a pre-disciplinary conference. An employee dismissed on
this basis shall be given a notice of the dismissal in writing that includes specific
reason for the dismissal and notice of the employee's right to appeal.
2. In all other cases of post-hiring discovery of false or misleading information,
disciplinary action will be taken, but the severity of the disciplinary action shall
be at the discretion of the Chancellor or designee.
3. When credential or work history falsification is discovered before employment with
the university, the applicant shall be disqualified from consideration for the position
in question.
XIII. Definitions
Current Unresolved Incident - An act of unacceptable personal conduct, unsatisfactory
job performance or grossly inefficient job performance for which no disciplinary action
has previously been taken by the agency.
Demotions – A personnel action taken, without employee agreement, to discipline the
employee, which results in:
• lowering the salary of an employee within their current pay grade, or
• places the employee in a position at a lower pay grade with or without lowering
the employee's salary.
Dismissal - The involuntary termination of an employee from employment for disciplinary
reasons or for failure to obtain or maintain necessary job related credentials.
Grossly Inefficient Job Performance - Failure to satisfactorily perform job requirements
as set out in the job description, work plan, or as directed by the management of
the work unit or agency, and the act or failure to act causes or results in:
• death or serious bodily injury or creates conditions that increase the chance for
death or serious bodily injury to an employee(s) or to members of the public or to
a person(s) for whom the employee has responsibility; or,
• the loss of or damage to State property or funds that results in a serious adverse
impact on the University or work unit.
Inactive Disciplinary Action - A disciplinary action becomes inactive, i.e., cannot
be counted towards the number of prior disciplinary actions that must be received
before further disciplinary action can be taken for unsatisfactory job performance
when:
• the manager or supervisor notes in the employee's personnel file that the reasons
for the disciplinary action have been resolved or corrected; or
• for performance-related disciplinary actions, the performance evaluation process
documents a summary performance rating that reflects an overall acceptable level of
performance and satisfactory performance in the area cited in the warning or other
disciplinary action, or
• eighteen (18) months have passed since issuance of the warning or disciplinary action
and the employee has not received another active disciplinary action during the 18-month
timeframe.
The completion of personnel transactions for demotions or suspensions do not make
the actions inactive. These actions are still active for 18 months.
Insubordination - The willful failure or refusal to carry out a reasonable order from
an authorized supervisor. Insubordination is unacceptable personal conduct for which
any level of discipline, including dismissal, may be imposed without prior warning.
Suspension without Pay - The unpaid removal of an employee from work for disciplinary
reasons.
Unacceptable Personal Conduct - An act that may include but is not limited to:
1. conduct for which no reasonable person should expect to receive prior warning;
2. job-related conduct which constitutes a violation of State or federal law;
3. conviction of a felony or an offense involving moral turpitude that negatively
impacts the employee's service to the University or the public's trust and confidence
in the University;
4. the willful violation of known or written work rules;
5. conduct unbecoming a State employee that is detrimental to State service;
6. the abuse of client(s), patient(s), student(s), or person(s) over whom the employee
has responsibility or to whom the employee owes a responsibility, or the abuse of
an animal owned by or in custody of the State;
7. material falsification of a State application or other employment documentation
(to include falsification of work-related documents);
8. use of professional State credentials for personal gain;
9. serious disruption in the workplace;
10. insubordination;
11. subjecting an employee, client, or customer to intentionally discriminatory treatment
or harassment.
Unsatisfactory Job Performance - Work-related performance that fails to satisfactorily
meet job requirements as set out in the relevant job description, work plan, or as
directed by the management of the work unit or university.
XIV. RELATED RESOURCES
Grievance Policy and Procedures for SHRA Employees, University Policy #77