Issue: Compliance, 5-day rule; Ruling Date June 4, 2001, Ruling #2001-089; Agency: Department of Juvenile Justice; Outcome: Agency out of compliance

In the matter of David Brown v. Department of Juvenile Justice

Ruling Number 2001-089

June 4, 2001

ISSUE:

Did the agency respond to the grievance at the first step in a timely manner?

RULING:

The first step supervisor responded to the grievance on May 31, 2001, one day after this Department forwarded the grievant’s notice of alleged noncompliance to the agency. The agency is therefore now in compliance with the procedural requirements for responding to a grievance at the first step of the process. The parties are advised that within five workdays of receipt of this ruling the grievant must either indicate on his Form A his intention to continue to the second step and submit the Form to the second step respondent, or indicate on the Form his intention to conclude the grievance. This Department’s rulings on matters of compliance are final and nonappealable. (See Va. Code § 2.1-116.03(5).)

EXPLANATION:

The grievant claims that he filed the grievance with his supervisor on April 9, 2001 and that she failed to provide a proper first step response. The grievant also asserts that subsequently, on April 18, 2001, he gave written notice of the alleged noncompliance to "the agency head of [his] department." The grievant has not provided documentation for either of these claims.

The grievant’s supervisor asserts that she never received a Form A from the grievant. The agency’s central human resources personnel state that their office also did not receive, and was not aware of, the present grievance nor any notice of noncompliance from the grievant. Similarly, the supervisors in the grievant’s management chain, including the agency head, have indicated that they did not receive any notice of noncompliance from the grievant relating to this grievance. The grievant’s supervisor did receive the Form A on May 30, 2001, pursuant to this Department’s investigation of the grievant’s ruling request. Subsequently, the supervisor responded at the first step on the Form A and hand-delivered the response to the grievant on May 31, 2001.

The grievance procedure provides that, within five workdays of receiving the grievance, the first step respondent must provide a written response on the Form A or an attachment. (See Grievance Procedure Manual § 3.1, page 8.) The five day time frame only begins when a supervisor actually receives the Form A. Further, notice of the agency’s noncompliance with the five day time frame must be made in writing to the agency head. (See Grievance Procedure Manual § 6.3(1), page 17.)

In this case, the facts are in dispute as to whether the grievant initiated his grievance with his supervisor and/or later gave a notice of noncompliance to the agency head. However, even assuming that he did both, the agency is now in compliance because the first step respondent has submitted her response to the grievant. Further, there is no evidence of any undue prejudice or harm to the grievant stemming from the timing of his supervisor’s first step response.

Neil A.G. McPhie, Esquire
Director

Jeffrey L. Payne
Employment Relations Consultant