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Policy Manual for Staff Employees

SECTION 7 - Employee Relations, Disciplinary Process and Grievance/Appeals
SPA

I. Statement

A SPA employee, regardless of occupation, position or profession may be warned, demoted, suspended or dismissed. The degree and type of action taken will be based on the judgment of the appointing supervisor in accordance with provisions of this policy.

Note:Supervisors contemplating disciplinary action of any kind must request the advise of the Associate Vice Chancellor for Human Resource Services or his/her designee before beginning such action. Responsibility for the decision to invoke disciplinary action remains with the supervisor.

II. Policy

It is the intent of the State Personnel Commission in establishing this policy to provide for State employees (SPA) and State government management a fair, clear and useful tool for correcting and improving performance problems, as well as to provide a process to assist management in handling cases of unacceptable personal conduct. Any disciplinary action taken in accordance with this policy must be for just cause under one of the two following bases:

• discipline imposed on the basis of unsatisfactory job performance including gross inefficiency;
• discipline imposed on the basis of unacceptable personal conduct.

Note: All matters concerning disciplinary action, suspension and dismissal are reviewed by the Chancellor or designated management representative. The term supervisor or management representative will be used throughout to indicate this designation.

III. Covered Employees

This policy applies to employees that have attained career status as defined by law. (See policy on career status.) Note: While the State's policy does not apply to non-career status employees, the University has chosen to use this policy for all non-probationary employees who hold permanent position appointments.

Note: EMPLOYEES NOT COVERED: While the policy does not apply to non-career Status employees, it is advisable to follow the policy for all employees to ensure consistency and equity in treatment of employees and for documentation purposes.

IV. Definitions

For purposes of this policy, the terms below mean the following:

Note: Disciplinary action issued for unsatisfactory job performance, including gross inefficiency, or for unacceptable personal conduct are all subject to becoming inactive for the purposes of counting towards the number of prior disciplinary actions needed for further disciplinary action after the expiration of an eighteen month period without additional disciplinary action or extension, or if removed by the University because of the determination that the issue addressed by the warning or other disciplinary action has been resolved.

V. Just Cause for Disciplinary Action

A. General Provisions

What is Just Cause?

There are two reasons (just cause) for the discipline or dismissal of employees. These two reasons are:

• unsatisfactory job performance, including gross inefficient job performance, and
• unacceptable personal conduct.

Some actions by an employee may fall under both reasons. No disciplinary action shall be invalid solely because the disciplinary action is labeled incorrectly.

What can disciplinary action be taken?

When just cause exists, any career state employee, regardless of occupation, position or profession may be warned, demoted, suspended or dismissed by the appointing authority.

What type of disciplinary action can be taken?

The degree and type of action taken shall be based upon the sound and considered judgment of the appointing authority according to this policy.

When just cause exists, the disciplinary actions that can be taken are:

• written warning
• disciplinary suspension without pay,
• demotion, and
• dismissal.

B. Unsatisfactory Job Performance

What is just cause unsatisfactory job performance?

Any work related performance problem may establish just cause to discipline an employee for unsatisfactory job performance. Just cause for a warning or other disciplinary action for unsatisfactory job performance occurs when an employee fails to satisfactorily meet job requirements.

Note: Factors recommended for consideration. The determination of unsatisfactory performance is generally made by the supervisor. The supervisor's determination should be reasonable, proper and factually supported. In determining whether an employee's performance is unsatisfactory job performance, a manager should consider any one or a combination of the factors set forth below:

• the quality of work
• the quantity of work
• work habits
• promptness
• the timely performance of work
• related analysis, or judgment
• the accuracy of the work
• the performance or work plan and the appraisal
• absenteeism
• ability to follow instructions, directions, or procedures
• the appropriateness of work performed
• any other factors that, in the opinion of the supervisor, are appropriate to determine whether an employee's performance constitutes unsatisfactory job performance

What is required before a disciplinary action for unsatisfactory job performance may be taken?

Before the disciplinary actions for unsatisfactory job performance may be taken, the following must occur:

Warning - before a warning for unsatisfactory job performance may be given the employee must have

• a current unresolved incident of unsatisfactory job performance

Disciplinary Action Without Pay - before a disciplinary suspension without pay for unsatisfactory job performance may be taken the employee must have:

• a current unresolved incident or unsatisfactory job performance and
• at least one prior active warning or other disciplinary action for unsatisfactory job performance,
• a pre-disciplinary conference

Demotion - before a demotion for unsatisfactory job performance may be taken the employee must have:

• a current unresolved incident or unsatisfactory job performance and
• at least two prior or other disciplinary actions for unsatisfactory job performance, or gross inefficiency, or unacceptable personal conduct and
• a pre-disciplinary conference

C. Gross Inefficient Job Performance/Unacceptable Personal Conduct

Supervisors contemplating disciplinary action of any kind must request the advice of the Associate Vice Chancellor for Human Resource Services or his/her designee before beginning such action. Responsibility for the decision to discipline and/or dismiss remains with the supervisor.

What is just cause for gross inefficient job performance?

Just cause to warn or take other disciplinary action for gross inefficient job performance exists when job performance is so unsatisfactory that it causes or results in or creates conditions that increase the chance for death or serious injury to employees, members of the public or to persons for whom the employees have responsibility.

Just cause to warn or take other disciplinary action for gross inefficient job performance is also created when job performance is so unsatisfactory that it causes or results in a serious loss of or damage to State property or funds adversely impacting the State, University and/or the work unit.

Failure to obtain or maintain legally required certificates, licenses, bonds or other credentials is treated like gross inefficient job performance. Thus an employee may receive a warning or any other disciplinary action up to and including dismissal.

What is just cause for unacceptable personal conduct?

Just cause to warn or take other disciplinary action for unacceptable personal conduct may be created by intentional or unintentional acts. The conduct may be job related or off duty as long as there is sufficient connection between the conduct and the employee's job. Insubordination is a type of unacceptable personal conduct.

What is required before a disciplinary action for gross inefficiency or unacceptable personal conduct may be taken?

Before a disciplinary action for gross inefficiency or unacceptable personal conduct may be taken:

Warning - before a warning for gross inefficient job performance or unacceptable personal conduct may be given the employee must have:

• a current unresolved incident of gross inefficient job performance or unacceptable personal conduct.

Disciplinary Suspension Without Pay - before a disciplinary suspension without pay for gross inefficient job performance or unacceptable personal conduct may be imposed the employee must have:

• a current unresolved incident of gross inefficient job performance or unacceptable personal conduct and
• a pre-disciplinary conference.

Demotion - before a demotion for gross inefficient job performance or unacceptable personal conduct may be imposed the employee must have:

• a current unresolved incident of gross inefficient job performance or unacceptable personal conduct and
• a pre-disciplinary conference.

Dismissal - before a dismissal for gross inefficient job performance or unacceptable personal conduct may be imposed the employee must have:

• a current unresolved incident of gross inefficient job performance or unacceptable personal conduct and
• a pre-disciplinary conference.

Note: When a pre-disciplinary conference is conducted for a recommended type of disciplinary action, but after the conference the University decides to take disciplinary action of a lesser degree of seriousness than the one for which the conference was held, it is not required that the University conduct and additional pre-disciplinary conference as long as the employee was notified and had the opportunity to be heard with respect to the less serious disciplinary action.

However, it is permissible for the University to conduct such an additional pre-disciplinary conference if the University determines that it would be appropriate under the circumstances, or if the employee requests the additional opportunity to be heard.

VI. Disciplinary Procedures

A. General Provisions

Supervisor's Role in Discipline

The supervisor has a duty to review and encourage satisfactory job performance by employees of his/her work unit. A supervisor also has the duty to address cases of unacceptable personal conduct.

Note: When a supervisor determines that an employee has violated this policy the supervisor should examine a number of actors to decide the appropriate type of disciplinary action. Among the factors are:

• Whether the supervisor should recommend disciplinary action based on the facts
• Whether more investigation is needed to make a recommendation
• The type and degree of disciplinary action to be taken
• The employee's work history
• The disciplinary actions received by other employees within the University/work unit for comparable performance or behaviors
• Other relevant factors

Supervisor's Role in Warnings

In cases of unsatisfactory job performance, a written warning is the first type of disciplinary action that an employee may receive. After the first unsatisfactory job performance warning, a supervisor may give additional written warnings or a higher level of disciplinary action.

The supervisor may give a written warning for gross inefficient job performance or unacceptable personal conduct. However, this policy does not require a written warning before management takes other disciplinary action in these types of cases.

B. Written Warning

Contents of a Warning:

All warnings shall:

• Be in writing and state that it is a warning.
• Tell the specific conduct or performance that is the reason for the warning.
• Tell the specific performance or conduct improvements that must be made.
• Tell the time within which the employee must show improved performance or conduct. If the warning does not include an improvement or correction time frame, the time frames is 60 days for unacceptable job performance and immediately for gross inefficient job performance or unacceptable job conduct.
• Tell the consequences of failing to make the required improvements/corrections.
• Tell the employee there are no appeal rights provided by University policy or State law.

C. Disciplinary Suspension Without Pay

When can an employee be placed upon disciplinary suspension without pay?

An employee may be suspended without pay for disciplinary reasons for a current incident of unsatisfactory job performance after the receipt of at least one prior disciplinary action or without prior warning or disciplinary action for any form of unacceptable personal conduct or gross inefficient job performance.

Length of Time for Disciplinary Suspension

A disciplinary suspension without pay for an employee who is subject to the overtime compensation provisions of the Fair Labor Standards Act (FLSA) must be for at least one full work day, but may not be for more than two work weeks. The length of a disciplinary suspension without pay for an employee who is exempt from the overtime compensation provisions of the FLSA must be for at least one full work week, but may not be for more than two full work weeks.

Procedure for a Disciplinary Suspension Without Pay

Before an employee is placed on disciplinary suspension without pay, a supervisor must:

• Schedule and conduct a pre-disciplinary conference. The supervisor must give advance oral or written notice of the conference to the employee. The notice must tell the employee the type of disciplinary action (disciplinary suspension) being considered time and location, and the facts that led to the recommendation. Advance notice should be as much as practical under the circumstances.
• Give the employee a statement in writing telling the acts or failure to act that are the reason for the suspension and telling the employee of their right to appeal.

Note: This policy only applies to employees with career status. Career status employees who are suspended, demoted, or dismissed have appeal rights to The State Personnel Commission.

We recommend the use of this policy in handling matters regarding non-career status employees for consistency and documentation purposes. By law, non-career status employees have no appeal rights outside the University.

D. Demotion

When can an employee receive a demotion?

Any employee may be demoted as a disciplinary measure. Demotion may be made on the basis of either unsatisfactory or gross inefficient job performance or unacceptable personal conduct. Before the decision to demote an employee for disciplinary reasons, a management representative must conduct a pre-disciplinary conference with the employee in accordance with the procedural requirements of this Policy.

Unsatisfactory Job Performance

An employee may be demoted fro a current incident of unsatisfactory job performance after the employee has received at least one prior warning of disciplinary action.

Gross Inefficient Job Performance

An employee may be demoted for gross inefficient job performance without any prior warning or disciplinary action.

Personal Conduct

An employee may be demoted for unacceptable personal conduct without any prior warning or disciplinary action.

Procedure for a Demotion

Before demotion of an employee, a supervisor must:

• Schedule and conduct a pre-disciplinary conference. They must give advance oral or written notice of the conference to the employee. The notice must tell the employee the type of disciplinary action (demotion) being considered, the conference time and location, and the facts that led to the recommendation. Advance notice should be as much as practical under the circumstances;
• Tell the employee if the demotion will change the employee's salary rate and/or pay grade and if so what change will occur in the salary rate and/or pay grade;
• Give the employee a statement in writing telling the acts of failures to act that are the reason for the demotion and telling the employee of his/her appeal rights.

Note: While this policy authorizes advance oral or written notice of a demotion or a suspension without pay, the better practice is to give the notice in writing so that if there is a dispute about the notice, both the employee and the University will have documentation of the fact that the notice was given and that the other policy requirements were met.

E. Dismissal

When can an employee be dismissed?

Any employee may be dismissed. Dismissal may be a result of unsatisfactory or gross inefficient job performance or unacceptable personal conduct. Before the decision to dismiss for disciplinary reasons is made, a management representative must conduct a pre-disciplinary (dismissal) conference with the employee. The conference must be handled according to this policy.

Unsatisfactory Job Performance - An employee must have at least two prior warnings or other disciplinary actions or one of each before dismissal for a current incident of unsatisfactory job performance.

Gross Inefficient Job Performance - An employee may be dismissed for a current incident of gross inefficient job performance without any prior disciplinary actions.

Unacceptable Personal Conduct - An employee may be dismissed for a current incident of unacceptable personal conduct without any prior disciplinary actions.

Required Consultation

The supervisor recommending dismissal must discuss the recommendation with appropriate University management. Upon approval by University management, a pre-disciplinary conference shall be held with the employee.

Person Conducting the Pre-disciplinary Conference

The person conducting the pre-disciplinary conference must have the authority to recommend or decide what, if any, disciplinary action should be imposed on employee.

F. Procedure for Pre-Disciplinary Conference

Procedure for Dismissal

Before dismissal of an employee, a supervisor must:

• Schedule and conduct a pre-disciplinary conference. They must give advance written notice of the conference to the employee. The notice must tell the employee the type of disciplinary action being considered (dismissal), the conference time and location, and the facts that led to the recommendation. Advance notice should be as much as practical under the circumstances;
• The people that are a part of the conference are:
  • The Supervisor or other person chosen by University management to conduct the conference;
  • The employee;
  • If the person conducting the conference chooses, security may be present
  • No attorney shall represent either side at the conference.

Note: While the policy limits the participants in the conference to the employee and the management person conducting the conference, except for the possibility of a security person, if the employee and management agree, a second neutral party may also be present during the conference.

During the Conference

During the conference, the person conducting the conference must:

• Give to the employee oral or written notice of the recommendation for dismissal including the specific reasons for the proposed dismissal and a summary of the facts supporting the dismissal recommendation.
• Give the employee an opportunity to respond with information against the recommended dismissal, offer facts that are different from those offered by management and offer facts in support of the employee's case. This policy does not give an employee the right to have witnesses at the conference.

Following the Conference

After the conference, management shall:

• Review and consider the response of the employee and make a decision on the recommended dismissal.
• Not communicate the decision before the start of the next business day after the conference.
• If management decides to dismiss, the employee shall receive a written letter of dismissal either in person or by certified mail with return receipt requested. The letter must include:
  1. The reason for the dismissal
  2. The effective date of the dismissal
  3. The employee's right to appeal

The effective date of the dismissal shall be no sooner than the date of the written notice and no later than 14 calendar days after the written notice. When dismissal is for unsatisfactory job performance, management may give an employee pay in lieu of the 14-day notice or any part of that notice.

Failure to Follow Procedure

Failure to give written reasons for the dismissal, written notice of appeal rights or to conduct a pre-disciplinary conference is a procedural violation. If the University fails to follow procedure, the University shall be subject to the rules of the Commission dealing with procedural violations.

The time for filing a grievance as a result of the dismissal does not start until the employee receives a written notice of any applicable appeal rights.

VII. Special Provisions

A. "Grandfather" Provisions

The following grandfather provisions establish the force and effect of disciplinary actions in existence upon the effective date of this policy:

1. Oral warnings - any oral warnings existing October 1, 1995 is deemed void and has no further force or effect upon the disciplinary status of any State employee.
2. All other disciplinary actions existing as of October 1, 1995 shall remain in full force and effect as if the warnings or disciplinary actions had been imposed under this policy. No written warning or other disciplinary action imposed prior to October 1, 1995 shall be deemed inactive by operation of the provisions of this policy until more than 18 months after October 1, 1995, or until the disciplinary action is otherwise deemed inactive in accordance with the definition.
3. Extension of Disciplinary Action - any written warning or disciplinary action imposed prior to the adoption of this policy may be extended in accordance with the provisions of this policy as if the warning or disciplinary action had been imposed after the effective date of the policy. No unresolved written warning or disciplinary action issued under the prior policy shall become inactive, if within 18 months of the effective date of this policy, another disciplinary action or warning is imposed on the employee or management acts to extend the active status of a disciplinary action. Notice of the extension of the active status of a disciplinary action can be given at any time within 18 months of the effective date of the disciplinary action.
4. Resolution of disciplinary actions under prior University procedure - any warnings or disciplinary actions existing at the time that this policy is adopted shall be deemed inactive if it would have been resolved under the University procedure existing at the time of the adoption of this policy.

Note: Extension of Disciplinary Action
Notice of extension of the active status of a disciplinary action can be given at any time with 18 months of the effective date of the disciplinary action. A disciplinary action may be made inactive at any time deemed appropriate by management.

B. Investigatory Placement With Pay

How do you place an employee on investigatory status?

Management must notify an employee in writing of the reasons for investigatory placement not later than the second scheduled workday after the beginning of the placement. An investigatory placement with pay may last no more than thirty calendar days without written approval of extension by the University head and the State Personnel Director. When an extension beyond the thirty-day period is required, the University must advise the employee in writing of the extension, length of the extension, and the specific reasons for the extension. If no action has been taken by the University by the end of the thirty-day period and no further extension has been granted, the University must either take appropriate disciplinary action on the basis of the findings upon investigation or return the employee to active work status. Under no circumstance is it permissible to use placement on investigation status for the purpose of delaying an administrative decision on an employee's work status pending the resolution of a civil or criminal court matter involving the employee.

What are the reasons to place an employee on investigatory status with pay?

An employee may be placed on investigary status with pay only:

• To investigate allegations of performance or conduct deficiencies that would constitute just cause for disciplinary action;
• To provide time within which to schedule and conduct a pre-disciplinary conference; or,
• To avoid disruption of the work place and/or to protect the safety of persons or property.

C. Credentials

By statute, regulations, and administrative rule, some duties assigned to positions in the State service may be performed only by persons who are duly licensed, registered or certified as required by the relevant law or policy. All such requirements and restrictions are specified in the statement of essential qualifications or recruitment standards or classifications established by the State Personnel Commission.

Obtaining and Maintaining Credentials

Employees in such classifications are responsible for obtaining and maintaining current, valid credentials as required by law, rule or regulation. Failure to obtain or maintain the legally required credentials constitutes a basis for immediate dismissal without prior warning, consistent with dismissal for unacceptable personal conduct or gross insufficient job performance. An employee who is dismissed for failure to obtain or maintain credentials shall be dismissed under the procedural requirements applicable to dismissals for unacceptable personal conduct or gross inefficient job performance.

Falsification of Credentials

Falsification of employment credentials or other documentation in connection with securing employment constitutes just cause for disciplinary action. When credential or work history falsification is discovered after employment with a State agency/university, disciplinary action shall be administered as follows:

1. If an employee was determined to be qualified and was selected for a position based on falsified work experience, education, registration, licensure or certification information that was a requirement for the position, the employee must be dismissed in accordance with the Gross Inefficient Job Performance/Unacceptable Personal Conduct provisions.
2. In all other cases of post-hiring discovery of false or misleading information, disciplinary action will be taken, but the severity of the disciplinary action shall be at the discretion of the University head.
3. When credential or work history falsification is discovered before employment with a State University, the applicant shall be disqualified from consideration for the position in question.

D. Right of Appeal

Every disciplinary action shall include notification to the employee in writing of any applicable appeal rights.

Grievances

Warnings, extensions of disciplinary actions and periods of placement on investigation and placement on investigation with pay are not grievable. Absent an allegation of a violation of G.S. 126-25, warnings are not appeal able to the State Personnel Commission.

The University shall furnish to the employee, as an attachment to the written documentation of any grievable disciplinary action, a copy of the University grievance procedure.

Waiver of Appeal Rights

If a warning or disciplinary action is grievable within the University or to the State Personnel Commission, and the employee fails to timely grieve the warning or disciplinary action, the employee is deemed to have waived the right to contest the validity of a warning or disciplinary action.

E. Transfer of Disciplinary Action

When an employee transfers to another department or unit, any active written warnings or disciplinary actions will transfer with the personnel file of the employee and will remain in full force at the new work unit until removed by the new employer or made inactive by operation of this policy.

VIII. Policy Responsibilities

A. Retention of Warnings and Disciplinary Actions Within a Personnel File

• Warnings and disciplinary actions must remain within a personnel file for at least 18 months, unless the supervisor/management deems discipline actions no longer appropriate. Disciplinary actions will only be removed if the employee has had no additional disciplinary actions during the previous 18 months period.

B. Accessing the Employees Personnel File

• An employee may access his/her personnel file by calling the Department of Human Resource Services and making an appointment to view the file.

*Please note: some items require the Adobe Acrobat PDF Reader, which can be downloaded from the Adobe web site.

Page updated: 16-Jul-2009

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