Issue: Compliance/5-day rule; Ruling Date: April 12, 2001; Ruling #2001-056; Agency: Department of Corrections; Outcome: Out of compliance (agency)

In the matter of Department of Corrections

Ruling Number 2001-056

April 12, 2001

Did the agency violate a substantial requirement of the grievance procedure by failing to provide a timely second-step response?

RULING:

Yes. However, under the circumstances of the case, the agency’s noncompliance does not call for automatically finding in the grievant’s favor. By copy of this ruling, the grievant and the agency are advised that within 5 workdays from receipt of this letter, the grievant must either conclude his grievance or request to advance to the next resolution step. This Department’s rulings on matters of compliance are final and nonappealable. (See Va. Code § 2.1-116.03(5)).

EXPLANATION:

On March 14, 2001, the grievant attended the second-step meeting for his grievance. The second-step response was due within five workdays of March 14, however, as of March 21, he had not received a written response. Therefore, on March 22, he notified the agency head via facsimile of management’s failure to provide a timely second-step response.¹ After failing to receive a written response within the additional five workday time period, the grievant submitted a request to this Department on April 2, seeking the relief contained in his grievance. On April 3, the grievant received the second-step response, dated March 30, 2001.

DISCUSSION:

The grievance procedure requires both parties to address procedural noncompliance through a specific process.² That process assures that the parties first communicate with each other about the noncompliance, and resolve any compliance problems voluntarily, without this Department’s involvement. Specifically, the party claiming noncompliance must notify the other party in writing and allow five workdays for the opposing party to correct any noncompliance. For example, if an agency has not provided its management response within five workdays after the second-step meeting (as in this case), a grievant must notify the agency head of the noncompliance.

Before seeking a compliance ruling from this Department, the grievant must allow the agency five workdays after receipt of the written notice to provide its step response and thus come back into compliance. If the agency fails to correct the alleged noncompliance, the grievant may request a ruling from this Department. Should this Department find that the agency violated a substantial procedural requirement and that the grievance presents a qualifiable issue, this Department may resolve the grievance in the grievant’s favor unless the agency can establish just cause for its noncompliance.

In this case, the agency has clearly violated a substantial requirement of the grievance procedure and the grievant has presented a qualifable issue. There is no evidence, however, of any bad faith on the part of agency officials with respect to this delay, or any undue harm or prejudice to the grievant as a result of the violation. Within six workdays of the grievant’s notification to the agency head, the second-step respondent had completed his response (March 30, 2001) and the agency had come into compliance. In such a case, it is best that the grievance be determined on the merits.

Neil A.G. McPhie, Esquire
Director

June M. Foy
Employment Relations Consultant