Issue: Compliance, 30 day rule; Ruling date: March 27, 2001; Ruling #2001-024; Agency: Department of Corrections; Outcome: Out of compliance (grievant)

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Corrections
Ruling Number 2001-024
March 27, 2001

ISSUE:

Did the grievant initiate the grievance in a timely manner?

RULING:

The grievance was filed beyond the 30-calendar day period without just cause and is therefore untimely. The parties are advised that the grievance should be marked as concluded due to noncompliance and no further action is required. This Department's rulings on matters of compliance are final and nonappealable. (See Va. Code § 2.1-116.03(5)).

EXPLANATION:

On November 13, 2000, the Agency sent the grievant a certified letter advising that he had been separated from state employment effective November 12, 2000 under the state's long term disability policy. This letter was received by the grievant on November 17, 2000. On November 30, 2000, the grievant met with the Agency human resources office to discuss the contents of the November 13 letter. At the conclusion of that meeting, the grievant claims he was confident that his military status would cause the Agency to reinstate him to his former position upon being released from his physician at a later date. Thus, the grievant did not file a grievance at that time. On December 7, 2000, his physician released him to return to work. On the same day, he attempted to return to work and the Agency informed him that he had been removed from its payroll effective November 12. The grievant initiated his grievance on December 27, 2000.

The grievance procedure provides that an employee must initiate a written grievance within 30 calendar days of the day he knew or should have known of the event or action that is the basis of the grievance, unless there is just cause for the delay. (See Va. Code § 2.1-116.05(D); Grievance Procedure Manual § 2.4(1), page 6). In this case, the grievant is challenging his November 12, 2000 involuntary separation from state service, which he first learned about on November 17, 2000. His December 27, 2000 grievance was filed over 30 calendar days from November 17, 2000. Thus, the only issue remaining is whether there was just cause for his delay.

The grievant contends that the grievance was not timely filed because he lacked a clear understanding about the contents of the November 13 letter and was confused after having received an explanation about the letter from human resources. Thus, he asserts that he should not be held responsible for having to file his grievance within 30 calendar days from his receipt of the November 17, 2000 letter. Rather, the grievant claims that his 30 calendar days should start to run from December 7, 2000, the day the Agency refused to allow him to return to work. However, this Department has long held that it is incumbent upon each employee to know his or her responsibilities under the grievance procedure. The grievant was aware on November 17 that he had been separated from state service. Thus, he had until December 17 to file his grievance, which in any event gave him ten days to file from December 7, the date he was told that his former position had been filled. Under these circumstances, when the December 13 letter clearly stated that the grievant was "separated from active employment," the grievant's misunderstanding concerning the contents of the letter or the explanation of human resources does not constitute just cause for failure to initiate a grievance in a timely manner.

Neil A.G. McPhie, Esquire
Director

Felicia H. Johnson
Employment Relations Consultant