Issue: Compliance – 5-day rule; Ruling Date, July 2, 2001; Ruling #2001-111; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; Outcome: Agency In Compliance.

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services

EDR Ruling # 2001-111

July 2, 2001

The grievant has requested a compliance ruling in his October 30, 2000 grievance with the Department of Mental Health, Mental Retardation, and Substance Abuse Services (DMHMRSAS). The grievant claims that the agency’s third resolution step response was not timely filed. As relief, he requests a ruling in his favor on the substantive merits of the grievance.

FACTS

The grievant advanced his grievance to the third resolution step on June 11, 2001. Thus, the third step respondent had five workdays (or until June 18) to provide his response.1 On June 19, 2001, the agency head received the grievant’s notice, via e-mail, of the agency’s failure to respond at the third step within five workdays. On June 26, 2001, within five workdays of the agency head’s June 19 receipt of the grievant’s notice of noncompliance, the grievant received the third step response.2

DISCUSSION

The grievance procedure requires that parties first communicate with each other about the noncompliance, and resolve any compliance problems voluntarily, without this Department’s involvement. Specifically, a party claiming noncompliance must notify the other party in writing and allow five workdays for the opposing party to correct any noncompliance. If the agency fails to correct the alleged noncompliance, the grievant may request a compliance ruling from this Department.3

In this instance, management responded to the grievant’s notice of noncompliance by providing a third step response (thus coming back into compliance) within the requisite five workdays after receiving the notice. Accordingly, the compliance issues are moot.

The parties are again advised to proceed with the grievance on a timely basis. This Department’s rulings on matters of compliance are final and nonappealable.4

Neil A. G. McPhie, Esquire
Director

Tracey D. Watkins
Employment Relations Consultant

1 Grievance Procedure Manual, Definitions "Workday: Normal work schedule (excluding authorized leave time) for the individual responsible for taking the required action."
2 It is noted that the grievant's noncompliance notification was e-mailed on 6/18/01 at 11:19p.m. after the close of the workday. Therefore, the actual date of notification is 6/19/01.
3 Grievance Procedure Manual § 6.3, page 17.
4 Va. Code § 2.1-116.03(5).