grievance evaluator training
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DESCRIPTIONGrievance Evaluator Training. WV Code § 6C-2-1, et. seq. June 16, 2009. What is A Grievance?. A claim by an employee alleging a violation, a misapplication or a misinterpretation of the statutes, policies, rules or written agreements applicable to the employee including: - PowerPoint PPT Presentation
Grievance Evaluator TrainingWV Code 6C-2-1, et. seq.June 16, 2009
What is A Grievance?A claim by an employee alleging a violation, a misapplication or a misinterpretation of the statutes, policies, rules or written agreements applicable to the employee including:
(i) Any violation, misapplication or misinterpretation regarding compensation, hours, terms and conditions of employment, employment status or discrimination;
(ii) Any discriminatory or otherwise aggrieved application of unwritten policies or practices of his or her employer;
What is A Grievance?
(iii) Any specifically identified incident of harassment;
(iv) Any specifically identified incident of favoritism; or
(v) Any action, policy or practice constituting a substantial detriment to or interference with the effective job performance of the employee or the health and safety of the employee. W. Va. Code 6C-2-2(i)(1).
What is NOT a Grievance? It does not include any pension matter or other issue relating to public employees insurance in accordance with article sixteen, chapter five of this code, retirement or any other matter in which the authority to act is not vested with the employer. W. Va. Code 6C-2-2(i)(2).
Who Can File a Grievance?Must Be a Claim by an EmployeeAn employee is defined as any person hired for permanent employment by an employer for a probationary, full- or part-time position. W. Va. Code 6C-2-2(e)(1).
When must a Grievance Be Filed?
When must a Grievance Be Filed?Within fifteen days following the occurrence of the event upon which the grievance is based, or within fifteen days of the date upon which the event became known to the employee, or within fifteen days of the most recent occurrence of a continuing practice giving rise to a grievance, an employee may file a written grievance with the chief administrator stating the nature of the grievance and the relief requested and request either a conference or a hearing. The employee shall also file a copy of the grievance with the board. State government employees shall further file a copy of the grievance with the Director of the Division of Personnel. W. Va. Code 6C-2-4(a)(1).
Grievance FormSee Exhibit C
Grievance FormThe Grievance Form is created by the West Virginia Public Employees Grievance Board. It is the document that gives the employer notice of the actions the employee is grieving.
Conference v. HearingA Grievant may choose to have either a conference or a hearing.
Conference v. HearingConference. -- The chief administrator shall hold a conference within ten days of receiving the grievance. A conference is a private, informal meeting between the grievant and the chief administrator to discuss the issues raised by the grievance, exchange information and attempt to resolve the grievance. The chief administrator may permit other employees and witnesses to attend and participate in a conference to reach a resolution. The chief administrator shall issue a written decision within fifteen days of the conference. W. Va. Code 6C-2-4(a)(2).
Conference v. HearingLevel one hearing. -- The chief administrator shall hold a level one hearing within fifteen days of receiving the grievance. A level one hearing is a recorded proceeding conducted in private in which the grievant is entitled to be heard and to present evidence; the formal rules of evidence and procedure do not apply, but the parties are bound by the rules of privilege recognized by law . The parties may present and cross-examine witnesses and produce documents, but the number of witnesses, motions and other procedural matters may be limited by the chief administrator. The chief administrator shall issue a written decision within fifteen days of the level one hearing. W. Va. Code 6C-2-4(a)(3).
Conference v. Hearing
West Virginia Code 6C-2-3 (b)(1)The grievant prevails by default if a required response is not made by the employer within the time limits established in this article, unless the employer is prevented from doing so directly as a result of injury, illness or a justified delay not caused by negligence or intent to delay the grievance process.
West Virginia Code 6C-2-3 (b)(1)In making a determination regarding the remedy, the hearing examiner shall presume the employee prevailed on the merits of the grievance and shall determine whether the remedy is contrary to law or clearly wrong. The examiner may modify the remedy to be granted to comply with the law and to make the grievant whole.
Harmon v. Fayette County Board of Educ.At a Default Hearing, it is presumed that the grievant prevailed at the lower grievance level and the employer may assert that the remedy received by the grievant as a result of prevailing by default is contrary to law or clearly wrong.
What does that mean?1.Creates a presumption of correctness on the merits in favor of the grievant.It places a substantial burden on the Employer seeking to overturn the default.Focuses the L-III Hearing on the legal correctness of the remedy.Does not open proceedings to ancillary issues.
Harmon v. Fayette County Bd. Of Educ., supra.
Parties to A GrievanceParty", or the plural, means the grievant, intervenor, employer. W. Va. Code 6C-2-2(m).Intervenor Upon a timely request, any employee may intervene and become a party to a grievance at any level when the employee demonstrates that the disposition of the action may substantially and adversely affect his or her rights or property and that his or her interest is not adequately represented by the existing parties. W. Va. Code 6C-2-3(f).
Intervention FormSee Exhibit D
Level 1 RecordConference: Not required to be recorded, but all documents admitted and the decision, agreement or report become part of the record.Hearings: All the testimony at a level one shall be recorded by mechanical means and all documents admitted and the decision, agreement or report become part of the record. W. Va. Code 6C-2-3(m).
Chief Administrators DecisionLevel one decisions shall be dated, shall be in writing setting forth the decision or decisions and the reasons therefor, and, unless the time frame is waived by all parties, shall be issued within fifteen days of the conference or hearing to the Board, the parties, and any representative(s) named in the grievance. If the grievant is denied the relief sought,the decision shall inform the grievant that an appeal must be filed with the Board within ten days of receipt, and shall include the name and address of the Board. 156CSR4.4
Who is the Chief AdministratorThe President of the College or University.As a hearing examiner, your role is to conduct the conference or hearing and to make a recommendation, in the form of a decision, to the President. It is the President who will ultimately make the decision on whether to grant or deny the grievance.
Procedure of Conducting ConferenceMake sure all parties have received a Notice of the Conference.Reasonable notice of a proceeding shall be sent at least five days prior to the proceeding to all parties and their representatives and shall include the date, time and place of the proceeding. W. Va. Code 6C-2-3(l).
Notice of Conference/HearingSee Exhibit E
Conference ProcedureHave everyone go around the room and introduce themselves.The Evaluator should read the Grievance and the relief requested.In non-disciplinary matters, the employee presents their side first.If the grievance involves a disciplinary issue the employer present their side first.If there is an intervenor, they typically present their side last.Once all parties have presented their evidence, they may provide the hearing examiner with oral or written closing statements.
Hearing ProcedureThe West Virginia Public Employees Grievance Board has developed Level One Hearing Guidelines which are attached as Exhibit F. You should review those before conducting a hearing.
Hearing ProcedureCheck recording device and explain how it will be used.Go on the record: have each participant identify themselves; describe the grievance; note the date, time and location.
Hearing ProcedureBurden of proof: If its not a disciplinary grievance, the burden of proof is on the grievant. If it is a disciplinary grievant, the burden of proof is on the employer.The standard of proof is the preponderance of evidence. Explain where burden of proof lies in this hearing.The Burden of Proof is NEVER on the Intervenor.
Hearing ProcedureSwear in all persons who will testify.
Administering Oath:Ask anyone who will be testifying to raise right hand. (Typically attorneys and/or grievants or intervenors representative should not be sworn.)Do you swear or affirm that the testimony you are about to give in this proceeding is the complete truth? Be sure to note on the record the names of all the individuals who have been sworn.If witnesses are sequestered, excuse witnesses to a waiting area and admonish them that they should not discuss the case and specifically their testimony with the other witnesses.
Hearing ProcedureHearing Examiner Opens The Proceedings:Gives the case name and docket number this is also referred to as the style of the caseReads the grievance and requested relief into the record.Entertains any motions that have been filed.
Hearing ProcedureOpening Statements
In NON-DISCPLINARY PROCEEDINGS:
Grievant may give opening statementEmployer may give opening statementIntervenor (if applicable) may give opening statement
Hearing ProcedureGrievants Case In ChiefGrievants Witnesses Dire