Issue: Compliance, 5-Day Rule; Ruling Date June 1, 2001, Ruling #2001-102; Agency: Department of Corrections; Outcome; Out of compliance-Agency.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Corrections

Ruling Number 2001-102

June 1, 2001

ISSUES:

Did the agency fail to provide a timely qualification decision? If so, should this Department render a decision against the agency on the qualifiable issue(s) presented by this grievance?

RULING:

The agency failed to provide a timely qualification decision, but under the circumstances of this case, a decision against the agency on any qualifiable issue is unjustified. By copy of this ruling, the grievant and the agency are advised that the matter should proceed to hearing as scheduled. This Department’s rulings on matters of compliance are final and nonappealable.1

EXPLANATION:

The Grievance Procedure Manual indicates that within five workdays of the second step response, a grievant using the expedited process may request the agency head to qualify his grievance for hearing.2 The Grievance Form A in this case explicitly states, following the second resolution step, that the "employee is responsible for having the grievance delivered to the proper person or office within five workdays." In turn, "[w]ithin 5 workdays of receiving the employee’s hearing request, the agency head must determine whether the grievance qualifies for a hearing."3

In this case, the agency head received the employee’s hearing request on April 16, 2001.4 Accordingly, a qualification decision was due by April 23, 2001. Due to administrative error, no action was taken on the request until May 9, 2001. Thus, the agency head did not provide a qualification decision within five workdays following his receipt of the grievant’s request, as provided in the Grievance Procedure Manual.

However, the Grievance Procedure Manual also provides that "[a]ll claims of noncompliance should be raised immediately."5 Further, if a grievant believes that the agency is out of compliance with the grievance procedure, he must first provide written notice to the agency head and allow the agency five workdays after receipt of the written notice to correct the noncompliance. If the agency corrects any noncompliance by the fifth workday following the agency head’s receipt of the grievant’s written notice, the agency "is considered in compliance and no relief will be available from EDR."6

Here, the grievant knew or should have known that the agency head’s qualification determination had not been issued by April 23 as required. However, it was not until May 10, 2001 –one day after the agency had already corrected its noncompliance by qualifying the grievance -- that the grievant’s representative verbally informed the agency that it was out of compliance with the grievance procedure. Thus, the grievant provided the agency head with no timely written notice of noncompliance, and the agency has already corrected its error. In light of these facts and the procedures established in the Grievance Procedure Manual, there is no basis for this Department to rule against the agency on any qualifiable issue presented in this grievance.

Neil A.G. McPhie, Esquire
Director

June M. Foy
Employment Relations Consultant

1 Va. Code § 2.1-116.03(5).
2 Grievance Procedure Manual § 2.4, page 7.
3 Grievance Procedure Manual § 4.2, page 11.
4 The grievant received the second step response on April 11, and then forwarded his request for a hearing to the correctional unit, which received it on April 12, 2001. On April 13, the correctional unit forwarded the hearing request to the agency head, who received it on April 16.
5 Grievance Procedure Manual § 6.3, page 17.
6 Id. This Department may render a decision against a non-complying agency on any qualifiable issue only if the agency has not corrected any noncompliance within five workdays following the agency head's receipt of the grievant's written notice of noncompliance.