Issue: Access-Access to Grievance Procedure; Ruling Date: June 25, 2001; Ruling #2001-061; Agency: Department of Corrections; Outcome No access.

In the matter of Department of Corrections

Ruling Number 2001-061

June 25, 2001

ISSUE:

Does the grievant have access to the grievance procedure?

RULING:

No. The grievant does not have access to the grievance procedure because she had not completed her probationary period at the time of her termination.

EXPLANATION:

The Code of Virginia establishes a grievance procedure to which only state employees who have successfully completed their probationary period have access.¹ According to Department of Corrections policy, Corrections Officers, such as the grievant, must serve a full twelve-month (one-year) probationary period.²Additionally, probationary periods must be extended by the number of calendar days equal to any period exceeding 14 consecutive days during which the employee is on leave with or without pay. Such extension shall include the initial fourteen days of absence.³

In this case, the grievant was hired by the agency as a Corrections Officer on January 13, 1999. One year from the grievant’s effective date of employment was January 13, 2000. However, due to the numerous absences from work, the agency continuously extended her 12-month probationary period over a two-year time span. Consequently, the grievant had not completed her probationary period prior to her termination on January 24, 2001, as discussed further below.

The grievant was absent from work and on short-term disability from October 27, 1999 to April 23, 2000 (180 days). Her leave transferred to long-term disability from April 24, 2000 to May 11, 2000 (18 days). Accordingly, her probationary period was extended for a total of 198 days from January 13, 2000 and her new probationary expiration date became July 29, 2000. However, the grievant was absent again from July 14, 2000 to August 1, 2000 (19 days) due to a back injury that occurred off the job. Her probationary period was extended for another 19 days as a result of this period of absence and her new probationary expiration date became August 17, 2000.

The grievant was absent again from August 3, 2000 to November 12, 2000 (102 days) as a result of an on-the-job back injury. Consequently, her probationary period was extended for another 102 days and her new expiration date became November 27, 2000. The grievant was again absent on short-term disability from November 19, 2000 until December 5, 2000 (17 days). Thus, the last day of her probationary period was extended for another 17 days to December 14, 2000.

The grievant’s final absence occurred when she went on short-term disability effective December 13, 2000, two days short of completing her probationary period. She had not returned to work and had not completed her probationary period when she was terminated on January 24, 2001 for unsatisfactory performance. (This final period of short-term disability had extended her probationary time for 43 more days, which, as of January 24, 2001, would have established January 26, 2001 as her final day of probation.) In sum, although the grievant contends that she had access to the grievance procedure because she was employed by the agency for well over one year, her employment records establish that due to her extended absences, she was terminated while still a probationary employee.

Neil A.G. McPhie, Esquire
Director

Felicia H. Johnson
Employment Relations Consultant