§6 Noncompliance with the Grievance Procedure
From the time that a grievance is initiated until the hearing decision becomes final, a party or a hearing officer may fail to comply with a provision of the grievance procedure. A party may challenge such noncompliance to the Director of EDR, who is authorized to issue final, nonappealable rulings on compliance challenges.
A challenge to EDR will normally stop the grievance
process temporarily. The grievance process will resume when EDR
issues its ruling on the challenge.
NOTE: EDR rulings on compliance will be published on EDR's Web site
in a manner that seeks to preserve personal privacy. See “Publication
of Hearing Decisions, Rulings, and Related Court Opinions,”
§8.1.
§6.2 Grievance Initiation Noncompliance
The employee’s “Form A” must comply
with the requirements for initiating a grievance. See “Initiating
a Grievance,” §2.4.
If the “Form A” does not comply:
- Management may notify the employee, using the “Form A,” that the grievance will be administratively closed due to noncompliance and that the employee may seek a compliance ruling from the EDR Director.
- The employee may request, within 5 workdays of receiving notice that the grievance will be closed, that the EDR Director decide whether the grievance is in compliance and can proceed. Any such ruling request must be accompanied by a copy of the grievance record, complete with all attachments. (The original grievance record should be kept by the agency).
Parties must comply with the requirements of the grievance procedure. All claims of noncompliance should be raised immediately. By proceeding with the grievance after becoming aware of a procedural violation, one may forfeit the right to challenge the noncompliance at a later time. To remedy noncompliance, a party must:
- Notify the other party in writing of the noncompliance (if the agency is out of compliance, written notice of noncompliance must be made to the agency head);
- Allow the other party 5 workdays after receipt of the written notice to correct the noncompliance;
- If the noncompliance is corrected within the 5 workdays, the party is considered in compliance and no relief will be available from EDR;
- If the noncompliance is not corrected within the 5 workdays, the party may request a ruling from EDR (providing the other party with a copy of that request); the request must identify the specific requirement of the grievance procedure that has not been followed.
- If the Director of EDR finds that a party has failed to correct the noncompliance within the 5 workdays, the Director may (i) order the party to correct the noncompliance, or (ii) where a substantial procedural requirement of the grievance procedure was violated without just cause, render a decision against the noncomplying party on any qualifiable issue.
Once a grievance has been qualified for hearing, any claims of party noncompliance occurring during the hearing phase should be raised in writing with the hearing officer appointed to hear the grievance. If a party disagrees with a hearing officer’s decision or order on a matter of compliance, an objection should be made to the hearing officer, and a ruling from EDR must be requested in writing and received by EDR within 15 calendar days of the date of the hearing decision.
§6.4 Hearing Officer Noncompliance
In presiding over the hearing process and in rendering hearing decisions, hearing officers must comply with the requirements of the grievance procedure and the Rules for Conducting Grievance Hearings promulgated by the Director of EDR. If the hearing decision is out of compliance, a party may challenge the decision to the Director of EDR. (See “Administrative Review of Hearing Decisions,” §7.2). If the noncompliance arises in pre-hearing matters or in the conduct of the hearing, the hearing officer’s noncompliance may be remedied as follows:
- An objection should be made to the hearing officer at the time the noncompliance occurs;
- A ruling from EDR must be requested in writing and received by EDR within 15 calendar days of the date of the hearing decision; and,
- If EDR finds that the hearing officer has failed to comply with the grievance procedure, the sole remedy is an order by EDR that the hearing officer correct the noncompliance.
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Revised August 30, 2004