PRINCIPLES OF DISCIPLINE - Florida Department of ...



Principles of Discipline

and

Grievance Resolution

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Supervisor’s Manual

October 2006

Table of Contents

PART ONE

PRINCIPLES OF DISCIPLINE

Foreword

Section I - Overview of Discipline

What is Discipline?

State’s Philosophy

Supervisor’s Role

Past Practice

Section II - Principles of Discipline

Counseling

Progressive Discipline

Disciplinary Standards

Establishing Cause

Constructive Discharge vs. Voluntary Resignation

Section III - Administering Discipline

Management’s Burden of Proof

On-Duty vs. Off-Duty Misconduct

Investigatory Interview

Types of Disciplinary Actions

Predetermination Procedures

Promptness of the Discipline

PART TWO

GRIEVANCE RESOLUTION

FOREWARD

SECTION I - AVOIDING A GRIEVANCE

Basic Principles of Supervision

Section II - Processing a Grievance

Who Can File a Grievance?

What is a Grievance?

Employee’s Choice of Remedy

Representation

Time Limits

Case File Management

Steps in the Grievance Procedure

Section III - Investigating a Grievance

Investigatory Process

Grievance Issues

Disciplinary Actions

Function of a Grievance Representative

Grievance Resolution and/or Settlement

Section IV - The Grievance Meeting

Career Service Grievance

Collective Bargaining Grievance

Conduct of the Grievance Meeting

Listening to the Employee’s Complaint

Concern for and Interest in the Complaint

Clearing up Misunderstandings or Miscommunications

Personality Conflicts

Providing Full Information

Promptness in Response

Section V - The Grievance Answer

Career Service Grievance

Collective Bargaining Grievance

Section VI – Conclusion

PART ONE

PRINCIPLES OF DISCIPLINE

Part one

PRINCIPLES OF DISCIPLINE

FORWARD

THE STATE OF FLORIDA, AS AN EMPLOYER, EXPERIENCES THE SAME TYPES OF DISCIPLINE PROBLEMS WITH ITS EMPLOYEES AS ANY OTHER MAJOR EMPLOYER IN BOTH PRIVATE AND PUBLIC SECTORS. THE STATE RELIES ON ITS SUPERVISORS AND MANAGERS TO RECOGNIZE POTENTIAL DISCIPLINARY PROBLEMS AT AN EARLY STAGE AND TO TAKE THE NECESSARY ACTION TO ASSIST EMPLOYEES IN CORRECTING THE PROBLEMS. MANAGERS AND SUPERVISORS ARE FURTHER RELIED UPON TO TAKE APPROPRIATE DISCIPLINARY ACTION IF A PROBLEM IS NOT CORRECTED.

Recognizing the difficulty this area of human resource administration presents for most supervisors and managers, as well as the increasing emphasis on employee rights, we have prepared this part of the manual to assist supervisors and managers within State government to:

1) have a better understanding of the role discipline plays in good HR management;

2) understand the legal requirements which apply to Career Service employees when disciplinary actions are to be taken; and

3) avoid potential problems and pitfalls when disciplinary actions are contemplated.

No attempt is made to recommend when or to what degree discipline should be administered. Those decisions are best left to the discretion of each agency based on its unique mission, standards of performance, disciplinary standards, and individual circumstances.

Section I

Overview of Discipline

WHAT IS DISCIPLINE?

IT IS A COMMON BELIEF THAT THE PURPOSE OF DISCIPLINE IS TO PUNISH. WHILE DISCIPLINARY ACTIONS ALWAYS INCLUDE A MEASURE OF PUNISHMENT OR PENALTY, THIS SHOULD NOT BE THE PRIMARY REASON FOR THE ACTION. DISCIPLINE ALSO HAS BEEN DEFINED AS A FORM OF TRAINING THAT CORRECTS AND MOLDS THE INDIVIDUAL’S JOB PERFORMANCE. AS TRAINING AND INSTRUCTION OF THE EMPLOYEE ARE THE PRIMARY OBJECTIVES TO BE ACHIEVED, A PENALTY NEED ONLY BE USED WHEN OTHER METHODS SUCH AS TRAINING AND INDIVIDUAL EMPLOYEE COUNSELING HAVE NOT BEEN SUCCESSFUL. WITH THE EXCEPTION OF DISMISSAL, VARIOUS DEGREES OF DISCIPLINE ARE USED, OFTEN AS A LAST RESORT, TO EMPHASIZE THE SERIOUSNESS OF A PARTICULAR SITUATION IN THE HOPE THAT AN EMPLOYEE WILL TAKE CORRECTIVE STEPS.

If the supervisor or manager has been unsuccessful in counseling an employee to correct problems which have been identified, there should be no hesitation in taking more severe action, such as a reprimand, suspension or termination. It is often said that such actions will not be sustained under the Career Service System or the collective bargaining agreements. Such statements are not supported by the record, and often are simply a defense for poor supervision, inappropriate discipline and/or a poorly prepared case.

Certain types of disciplinary actions are governed by Florida Statutes, the Rules of the Department of Management Services, Personnel Management System, that implement the statutory provisions, as well as collective bargaining agreements. Also, the agency’s standards of conduct control the kinds of action that may be taken, the reason for which such action can be taken and the range of penalties that may be used. However, all of these provisions exist to assure that supervisors and managers do not take arbitrary and capricious action against an employee and to assure similar treatment for similar offenses. Nothing in the statutes, rules or collective bargaining agreements prevents disciplinary action being taken when such action is warranted.

The sources of authority for discipline are found in the following:

1) Chapter 110, Florida Statutes

2) Chapter 60L-36, F.A.C., Conduct of Employees

3) The discipline article of each of the current collective bargaining agreements

4) Agency standards of conduct

Discipline is, therefore, the means by which we give formal notice to the employee of (1) specifically what he/she did wrong; (2) the rule or standard violated; (3) corrective action needed; and (4) what the employee can expect if the offense is committed again.

State’s Philosophy

TO A LARGE DEGREE, THE STATE’S PHILOSOPHY CONCERNING DISCIPLINE HAS BEEN ESTABLISHED IN THE FLORIDA STATUTES. THIS PHILOSOPHY HAS BEEN FURTHER DEFINED THROUGH ADOPTION OF THE RULES OF THE DEPARTMENT OF MANAGEMENT SERVICES, PERSONNEL MANAGEMENT SYSTEM, AND THE LANGUAGE AGREED TO BY THE STATE IN OUR COLLECTIVE BARGAINING AGREEMENTS. EACH AGENCY’S STANDARDS OF CONDUCT FURTHER DEFINE OUR PHILOSOPHY. THESE SOURCES ARE MORE FULLY DISCUSSED BELOW.

1) Chapter 110, Florida Statutes:

Section 110.227(1), Florida Statutes, states that any employee who has permanent status can only be suspended or dismissed for “cause.” The Florida Legislature has, therefore, indicated that management must have a reason or cause for suspending or dismissing a permanent Career Service employee. In other words, discipline must not be administered for reasons that are arbitrary, capricious or discriminatory. The penalty imposed should not be unreasonable in relation to the offense committed. Finally, the discipline must be based on conduct, action, or inaction, directly connected with or having a direct impact on the employee’s work.

Section 110.227(1), Florida Statutes, also states that “cause” includes, but is not limited to: poor performance, negligence, inefficiency or inability to perform assigned duties, insubordination, violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drug abuse, or conviction of any crime.

2) Rules of the Department of Management Services, Personnel Management System:

The Rules of the Department of Management Services, Personnel Management System require that each employee’s performance be evaluated at least annually, to assess performance in relation to established job requirements and performance standards. Therefore, every employee should know the requirements and standards against which he/she will be measured by supervisors and managers.

The Rules also provide each agency the authority and responsibility to establish work requirements and standards against which employees’ performance, conduct and actions will be measured. Employees are required to meet these established requirements and standards. At the same time, however, supervisors and managers cannot expect employees to meet requirements they are not aware of, nor can they treat similar offenses or deficiencies among different employees in substantially different ways. In other words, management has the right to manage its work and its employees, but employees must not be treated in an arbitrary or discriminatory manner by their superiors.

3) Collective Bargaining Agreements:

Each collective bargaining agreement includes a discipline article that restates the principles established by Chapter 110, Florida Statutes.

4) Agency Standards of Conduct

Agencies may choose to develop Standards of Conduct that are specific to the unique mission of the agency. However the agency Standards of Conduct should supplement, not replace, the State’s philosophy concerning discipline that is found in statute, rule and the collective bargaining agreements.

Supervisor’s Role

SUPERVISORS IN THE STATE WORKFORCE HAVE BEEN IDENTIFIED AS THOSE EMPLOYEES WHO HAVE AUTHORITY IN THE INTEREST OF THE STATE OF FLORIDA AS THE PUBLIC EMPLOYER, AND THROUGH ITS DEPARTMENTS, DIVISIONS, BUREAUS, SECTIONS AND SUBSECTIONS, TO: RECRUIT, SELECT, TRAIN, DEVELOP, AND MAINTAIN AN EFFECTIVE AND RESPONSIBLE WORKFORCE.

Inasmuch as it is the supervisor who initially is faced with the performance or discipline problem, it is important for supervisors at all levels to understand their role in State government with regard to taking steps to correct such problems.

1) Understanding the Statutes and Rules:

Every supervisor should have immediate access to a copy of: pertinent parts of Chapter 110, Florida Statutes; the Rules of the Department of Management Services, Personnel Management System; the collective bargaining agreements; and the agency’s standards of conduct and performance standards. The supervisor must become thoroughly familiar with these documents if they are to be an effective supervisor.

2) Implementing reasonable work standards:

A primary objective of every supervisor and manager should be to establish a working environment where employees feel that they are treated fairly, and can communicate openly with management. In order to do this, it is necessary to develop, consistently apply, and regularly review the work standards of the work unit. These standards should be the benchmark against which an employee’s performance is measured. Employees must understand that the supervisors and managers will determine their degree of success in their job based upon such measurements.

3) Counseling the employee:

When an employee fails to meet performance standards, the supervisor is responsible for taking or recommending corrective action. This action should begin by the supervisor meeting with the employee, explaining to the employee the standard that the employee is expected to meet, and the way the employee is failing to meet that standard. In the case of violations of standards of conduct, the supervisor should first attempt to counsel the employee in an effort to put the employee on notice that a violation has occurred, and to correct a behavior without having to take formal disciplinary action. A supervisor must maintain accurate records to document employee conduct and proposed corrective actions.

4) Applying corrective discipline:

Employees who violated standards of conduct by failing to follow agency rules, or fail to meet reasonable performance standards, even after counseling, cannot be ignored. Not only is it unfair to the public they serve, it is unfair to the employees who are meeting the required standards. When disciplinary action has to be taken as a corrective measure, the supervisor should remember the following basic rules:

• Uniform administration of discipline should be a major consideration. What action has been taken against other employees under similar circumstances?

• The supervisor and the employee must have the same understanding of the meaning and intent of the performance standard, standard of conduct, rule or other requirement involved. The supervisor must determine that the employee understood what was expected.

• The supervisor must ascertain whether a loose interpretation of the rules has been allowed in the past. Supervisors who choose to allow employees to bend the rules will have difficulty enforcing them. The supervisor must ensure that a violation of the standards of conduct, performance standards, job requirements, or rules is the real issue, and not personality conflicts or other factors that are not job related.

• The degree of discipline must be appropriate to the offense. Although the Florida Statutes allow agency flexibility to exercise its discretion as to the severity of the discipline to be administered, such discretion must be exercised in such a way that the “penalty fits the crime.” After all, it is the agency’s responsibility to justify and defend its actions.

5) Follow-up:

Whenever an employee has been counseled or disciplined (except for dismissal), it is important that the supervisor have follow-up sessions with the employee as needed to review progress (or lack thereof).

6) Leadership characteristics:

Supervising employees is not easy. A supervisor must, among other things, be willing to remain objective in often very trying situations.

When discipline is being considered, the supervisor must objectively review the facts upon which any discipline would be based. The supervisor must analyze the applicable statutes or rules, agency policies or directives, and be satisfied that the affected employee knew what was expected of them, and was given a reasonable opportunity to come into compliance.

The professional supervisor understands the proper use of discipline, and is prepared to take action that is fair, justified and necessary, without allowing emotions to enter into disciplinary decisions.

Past Practice

PAST PRACTICE BECOMES AN ISSUE IN SEVERAL FORMS. AN EMPLOYEE WHO IS ABOUT TO BE OR HAS BEEN DISCIPLINED WILL SOMETIMES RAISE THE ARGUMENT THAT:

• Other employees have committed the same violation and have not been disciplined.

• The particular rule or policy has always been unclear has not been enforced.

• Less severe discipline has been administered in the past.

In attempting to correct a situation that has existed for some time, management must take into account its past actions, and proceed with due regard to “fairness” and “justice” to give notice to all employees that the agency standards of performance and conduct will be enforced. Management should be especially sensitive to the principle of past practice when considering disciplinary action.

Without sufficient warning to employees that standards will be enforced, a disciplinary action may be overturned when challenged or appealed.

Section II

Principles of Discipline

SUPERVISORS MAY FEEL THAT THEY WILL NEVER BE FACED WITH A DISCIPLINE PROBLEM, OR THAT IT IS USELESS TO ATTEMPT TO DISCIPLINE AN EMPLOYEE. THIS IS A SERIOUS MISTAKE.

A supervisor must be familiar with the job requirements of each subordinate position and the capabilities of the employees filling those jobs. Likewise, each employee must understand the job requirements and be familiar with the methods by which performance will be evaluated. Both the supervisor and the employee must be familiar with the agency’s disciplinary standards or standards of conduct. It is the responsibility of managers and supervisors to make sure each employee understands what the agency expects of them, and the consequences of a violation of the standards of conduct.

Employees should not have to work under a continuous threat of discipline. Instead, they should fully understand that, with the exception of serious offenses, they will receive counseling and adequate warning before formal disciplinary action is taken. A supervisor usually will recognize a problem when it first begins to develop, and should immediately begin counseling the employee. This is particularly applicable in cases involving unsatisfactory work performance, absenteeism, tardiness, or any other condition that could gradually and continually worsen. In certain instances such as fighting, insubordination, striking a supervisor, or use of abusive language, there may not be time for counseling.

Agency standards of conduct must be sufficiently clear to put employees on notice both as to the severity and the immediacy of discipline for various offenses. Supervisors should not hesitate to take the specified action when such offenses occur. To delay discipline raises the question of whether it was really necessary. Failing to take discipline when it is justified will create a more serious problem if and when the employee repeats the offense.

Counseling

ALTHOUGH COUNSELING IS NOT CONSIDERED DISCIPLINE, IT IS MEANT TO HELP THE EMPLOYEE RECOGNIZE THE MISTAKE OR DEFICIENCY, ACCEPT THE STANDARD THAT IS REQUIRED, AND UNDERSTAND THE CONSEQUENCES OF FAILING TO MEET THE STANDARD. COUNSELING SHOULD BE CONSTRUCTIVE AT ALL TIMES. THE MAIN THRUST IS TO TRY TO HELP THE EMPLOYEE CORRECT THE PROBLEM OR BEHAVIOR. ALL SUPERVISORS SHOULD BE FAMILIAR WITH AND PRACTICE EFFECTIVE TECHNIQUES OF COUNSELING EMPLOYEES. IT IS IMPORTANT THAT THE SUPERVISOR BE BOTH OBJECTIVE AND SINCERE IN CONDUCTING THE COUNSELING SESSION. A FEW THINGS TO REMEMBER ARE:

1) Be a good listener. (You can’t hear if you’re talking.)

2) Be specific as to what is expected of the employee.

3) Maintain privacy: (Never criticize or counsel an employee in the presence of other employees.)

4) Avoid being hostile or losing your temper.

5) Talk about the employee’s behavior in an objective manner, and avoid discussion of personalities.

6) Never make excuses for enforcing the rules or become defensive.

7) Be specific as to the possible consequences.

In order to counsel employees, the supervisor must first have a clear understanding of the terminology used in the agency’s standards of conduct. The supervisor must understand what actions (or inactions) constitute negligence, inefficiency or inability to perform assigned duties, insubordination, or conduct unbecoming a public employee. Many agencies specify in their standards of conduct how some of the common violations such as sleeping on the job, misuse of State property, falsification of records, “excessive” absenteeism or tardiness, threatening or abusive language are handled based upon their agency’s unique mission.

If disciplinary action is to be taken, management should be satisfied that appropriate counseling was provided and was unsuccessful, or was not considered based upon the severity of the offense. Even when the offense requires immediate discipline (without benefit of prior counseling), management must be confident that the employee was aware both of the rule and the consequences for failing to abide by the rule.

Progressive Discipline

SOME AGENCIES WITH RULE-MAKING AUTHORITY, STILL UTILIZE PROGRESSIVE DISCIPLINE IN THEIR STANDARDS OF CONDUCT. THE TERM “PROGRESSIVE” IS DEFINED IN WEBSTER’S NEW COLLEGIATE DICTIONARY AS “INCREASING IN EXTENT OR SEVERITY.” AS RELATED TO PROGRESSIVE DISCIPLINE, THIS HAS BEEN INTERPRETED TO MEAN THAT GENERALLY FOR LESS SERIOUS OFFENSES THE PENALTY WILL RANGE FROM AN ORAL REPRIMAND FOR THE FIRST VIOLATION TO A WRITTEN REPRIMAND FOR THE SECOND, A SUSPENSION FOR THE THIRD, AND DISMISSAL THEREAFTER. MORE SERIOUS OFFENSES MAY ALLOW MANAGEMENT TO SUSPEND OR EVEN DISMISS FOR THE FIRST VIOLATION. IF THE PENALTY PROVIDES FOR A RANGE OF DISCIPLINE, MANAGEMENT HAS THE DISCRETION TO DETERMINE THE “DEGREE” OF DISCIPLINE TO ADMINISTER FOR A PARTICULAR OFFENSE. HOWEVER, THERE MUST BE CONSISTENCY (UNIFORMITY) IN APPLYING DISCIPLINE.

When properly used, progressive discipline can benefit both the employee and management. Management may salvage an otherwise valuable employee by initial warnings with the option of more severe discipline if the misconduct is not corrected. The employee has an opportunity to preserve their job by correcting the misconduct before the ultimate penalty of dismissal.

Disciplinary Standards

DISCIPLINARY STANDARDS SHOULD BE:

1) explained and made available to all employees with written documentation of receipt;

2) clearly defined as to agency objectives, work performance standards, standards of conduct, and other policies that are to be applicable in a given work situation;

3) administered fairly and for the express purpose of correcting behavior detrimental to the working climate of the agency; and

4) administered promptly and in such a manner as to preclude being overturned.

It is important for the supervisor to review the employee’s conduct in light of the standards, and determine the specific standard(s) violated. Each act of misconduct must be dealt with individually and with a close examination of all the facts.

Establishing Cause

WHEN DISCIPLINARY ACTION IS CHALLENGED BY AN EMPLOYEE, IT IS ON THE GROUNDS THAT THE ACTION WAS NOT FOR CAUSE. ONE OF MANAGEMENT’S FIRST PROBLEMS IS TO DEFINE THIS TERM. CAUSE, AS PROVIDED IN FLORIDA STATUTES, INCLUDES, BUT IS NOT LIMITED TO:

1) Poor Performance

2) Negligence

3) Inefficiency or inability to perform assigned duties

4) Insubordination

5) Violation of the provisions of law or agency rules

6) Conduct unbecoming a public employee

7) Misconduct

8) Habitual drug abuse

9) Conviction of any crime

Examples of conduct violations that constitute each of the categories above is found in Rule 60L-36.005, F.A.C.

This partial listing is to some extent misleading to the unwary supervisor. It is not enough for management to merely allege one of the above offenses. Establishing cause means being able to prove that the employee actually committed an offense listed above or an offense included in the agency’s standards of conduct. The burden of proof is always on management to establish cause. In order to prove cause, the following test questions should be considered:

1) Notice - Was the employee given advance notice of the standards and of the possible or probable disciplinary consequences of certain specific conduct or actions?

2) Reasonably Related - Are the work standards and rules, over which the employee was disciplined, related to the job, as opposed to arbitrary or discriminatory requirements that have no relationship to the employee’s job? (This is especially significant if the offense occurred on the employee’s own time.)

3) Proof of Misconduct - Did management investigate the alleged offense objectively, and clearly establish that the employee did, in fact, violate the work standard or rule?

4) Past Practice - Is the discipline consistent with management’s past treatment of employees who committed the same offense? Has the supervisor been uniform and consistent in his handling of similar problems?

5) Appropriateness of Discipline - Was the degree of discipline administered in the particular case reasonably related to the seriousness of the offense and the employee’s prior record of work performance and discipline?

Constructive Discharge vs. Voluntary Resignation

OCCASIONALLY AN EMPLOYEE WILL RESIGN AND THEN CLAIM THAT THEY WERE FORCED TO RESIGN DUE TO CERTAIN PRESSURES FROM MANAGEMENT. IT HAS BEEN COMMONLY HELD THAT A DECISION TO RESIGN MUST BE THE DECISION OF THE EMPLOYEE, FREELY AND VOLUNTARILY ARRIVED AT WITHOUT THREATS, COERCION, OR THE PRESSURE OF HARASSMENT. OTHERWISE THE SUPERVISOR MAY BE FACED WITH A CHARGE OF “CONSTRUCTIVE” DISCHARGE.

An employee may resign and then have a change of heart. The question that arises is whether management should allow the employee to rescind the resignation. An employee who submits a written resignation shall not have the right to appeal the termination to the Public Employees Relations Commission. The best way to avoid any confusion is for management to ensure that the resignation is in writing, and to provide the employee with written confirmation of its acceptance of the resignation. This procedure establishes the finality of the resignation and removes any question or doubt as to the employee’s status or intent.

Section III

ADMINISTERING DISCIPLINE

MANAGEMENT’S BURDEN OF PROOF

WHETHER THE DISCIPLINARY ACTION IS CHALLENGED BEFORE THE PUBLIC EMPLOYEES RELATIONS COMMISSION OR AN ARBITRATOR, THE INITIAL BURDEN IS ALWAYS ON MANAGEMENT TO SHOW CAUSE. AT ANY FACT FINDING HEARING, MANAGEMENT MUST FIRST PRESENT ITS REASON(S) FOR SUSPENDING OR DISMISSING THE EMPLOYEE. IF MANAGEMENT PRESENTS A POOR CASE, THE EMPLOYEE MAY NEVER HAVE TO DEFEND.

Management must not only prove cause, but must also demonstrate that the degree of discipline was appropriate to the offense. Although management may exercise discretion as to the severity of the discipline to be administered, this discretion must not be abused, but instead should be exercised with consistency in such a way that the “penalty fits the crime.”

Finally, management should be prepared to respond to and rebut any defenses the employee has raised. In fact, the employee’s defense(s) should be addressed at any preliminary meeting (predetermination conference) before any discipline becomes final.

On-duty vs. Off-duty Misconduct

IN THE CASE OF OFF-DUTY MISCONDUCT, MANAGEMENT HAS ISSUES TO DEAL WITH THAT ARE NOT PRESENT WHEN THE OFFENSE WAS COMMITTED ON THE JOB. WHERE THE ALLEGED OFFENSE OCCURRED ON THE EMPLOYEE’S OWN TIME AND AWAY FROM THE JOB SITE, CONSIDERATION MUST BE GIVEN TO:

1) relationship of the offense to employee’s work;

2) impact on the employee’s ability to do his job; and

3) impact on the employer’s ability to carry out its responsibilities.

In addition, management also must consider the availability of evidence and witnesses at any subsequent evidentiary hearing.

Investigatory Interview

1) RIGHT OF EMPLOYEE TO BE REPRESENTED:

Some types of offenses dictate the need for an investigation involving an interview with the affected employee. Court decisions relative to disciplinary investigations and the advent of collective bargaining agreements covering certain classes have raised an additional factor to be considered by management – the right of an employee (upon request) to have an employee organization representative present at certain investigatory interviews. Management must advise the employee of the purpose of the meeting so that the employee can make the necessary arrangements to have a representative present if one is desired.

2) Determining what constitutes an investigatory interview:

The collective bargaining agreements specifically provide that a covered employee may request that a union representative be present during any disciplinary investigation in which the employee is being questioned relative to alleged misconduct of the employee. The following are not considered to be investigatory meetings:

• Reviewing performance evaluations

• Counseling sessions

3) Employee representative’s participation in the meeting:

The courts generally have held that the representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of additional facts. While the representative can serve a very useful purpose, he is not present to question witnesses or attempt to convert the investigation into an evidentiary type hearing.

4) Investigatory meetings under the “bill of rights”:

Part VI of Chapter 112, Florida Statutes, is often referred to as the “Law Enforcement Bill of Rights.”

This law applies to Law Enforcement Officers, Correctional Officers and Firefighters. The terminology in the “bill of rights” is further clarified in the applicable collective bargaining units. Both the statute and the collective bargaining agreements are subject to change, and must be carefully reviewed where applicable. The “bill of rights” apply:

• To any disciplinary investigation meeting when the information obtained possibly will be the basis for a decision to suspend or dismiss the employee;

• When the employee is under investigation and subject to interrogation by members of the employing agency for any reason which could lead to the suspension or dismissal of the employee.

The ‘bill of rights” do not apply:

• To counseling sessions, or investigations which may result in lesser forms of disciplinary action;

Specific procedures to be followed and noted during the interrogation:

• When and where conducted

• Introduction and identification of attendees

• Method of questioning the employee

• Recording

• General conduct of the interrogation

• Length of session

Types of Disciplinary Actions

THE CAREER SERVICE RULES AND COLLECTIVE BARGAINING AGREEMENTS PROVIDE FOR VARIOUS TYPES OF DISCIPLINARY ACTIONS:

1) Oral Reprimand:

This is the least severe type of disciplinary action, the get the attention of the employee while the situation is correctable. During the oral reprimand, the agency must clearly indicate the nature of the problem, cite the work standard or rule governing the situation, and explain precisely what corrective action is expected. The agency must point out that future behavior of a similar nature may result in more serious disciplinary action, and should be confirmed in writing, to clearly identify that an oral reprimand was discussed with the employee, the date it took place, and a copy of such is placed in the employee’s official personnel file. The effective date of the oral reprimand is the date presented and discussed with the employee.

2) Written Reprimand:

A written reprimand may or may not be preceded by an oral reprimand for unacceptable conduct that develops over a period of time. The agency may determine that some offenses call for a written reprimand for the first offense. A written reprimand notifies the employee of the specific rule or work standard being violated. It places the employee on written notice that corrective action must be taken by the employee. It notifies the employee of the corrective action expected, and that future violations may result in further and possibly more severe disciplinary action. It is based upon facts and information of record, as opposed to hearsay, conjecture and unfounded conclusions. It must be documented in the employee’s personnel file, indicating the date presented and discussed with the employee, and requires the employee’s signature or a notation the employee refused to sign on a specific date. The date presented to the employee for signature is the effective date of the written reprimand.

3) Suspension:

This is a severe form of disciplinary action. “Suspension” as defined in the Florida Statutes is a disciplinary action taken by an agency pursuant to Section 110.227, Florida Statutes, against an employee to temporarily relieve the employee of his or her duties and place him or her on leave without pay. It may be imposed as the first discipline following the commission of certain serious offenses. If the suspension is the initial discipline, care should be exercised to insure the employee was aware of the seriousness of the offense.

A suspension must conform to the requirements of Section 110.227, Florida Statutes, by advising the employee of the proposed action and the reason for such action, listing specific offenses(s) or misconduct for which the employee is being disciplined. The employee must be advised of the right to appear before the agency or official taking the action to answer orally and in writing the charges against him or her prior to the date the action is to be taken. The notice of final action must advise the employee of the right to appeal the action to the Public Employees Relations Commission or, if the employee is covered by a collective bargaining agreement, the right to file a collective bargaining grievance. Finally, a copy of the notice of suspension must be placed in the employee’s official personnel file.

4) Suspension pending outcome of criminal charges:

Occasionally, management will suspend an employee who has been charged by law enforcement authorities with criminal misconduct. Such charges may allege either on- or off-duty misconduct. If this action is taken, management is at least implying that final action will rest solely on the outcome of the criminal proceedings. Potential problems include, among other things, extensive delay before final resolution, and oftentimes no clear determination of guilt or innocence.

5) Dismissal:

This is the final and most severe form of discipline that may be imposed on an employee. Dismissal generally is used in the case of a major conduct offense or as the final step when an employee repeatedly violates standards of conduct. A dismissal must conform to the same statutory requirements as a suspension.

Predetermination Procedures

1) REGULAR PROCEDURE:

Chapter 110, Florida Statutes, provides for written notice of the proposed action to be given to a permanent Career Service employee by management prior to a suspension or dismissal. The statute provides both the safeguard of advance notice to the employee of proposed disciplinary action, and an opportunity for the employee to appear before the person taking the action and to respond to the charges before management makes a final decision. The purpose of this procedure is to reduce the risk of unfairly or unjustly suspending or dismissing an employee.

If the employing agency decides after the predetermination conference that it will proceed with the suspension or dismissal of the employee, the employee must be notified in writing by personal delivery or by certified mail, return receipt requested, of the employee’s right of appeal to the Public Employees Relations Commission. An employee in a position covered by a collective bargaining agreement must also be notified that, as an alternative, the agreement’s grievance procedure may be used.

2) Extraordinary Situations:

In certain extraordinary circumstances an employee may be suspended or dismissed immediately, without 10 calendar days’ prior notice of such action, provided that oral or written notice of such action, evidence of the reasons therefore, and an opportunity to rebut the charges are furnished the employee prior to such dismissal or suspension. However, these situations are limited to incidents where the retention of a permanent Career Service employee would:

• result in damage to state property;

• be detrimental to the best interest of the State; or

• result in injury to the employee, a fellow employee, or some other person.

Agencies employing sworn law enforcement, correctional personnel, or firefighter personnel covered by a bill of rights, must assure that the appropriate statutes and collective bargaining agreements are followed.

Promptness of the Discipline

AN AGENCY MUST PROMPTLY DEAL WITH EMPLOYEE DEFICIENCIES AND BREACHES OF CONDUCT. IF YOU ARE GOING TO DISCIPLINE AN EMPLOYEE, DO NOT UNREASONABLY DELAY THE ACTION.

PART TWO

GRIEVANCE RESOLUTION

Part Two

Grievance Resolution

FOREWORD

SECTION 110.227(4), FLORIDA STATUTES, DEFINES A CAREER SERVICE GRIEVANCE AS:

“…the dissatisfaction that occurs when an employee believes that any condition affecting the employee is unjust, inequitable, or a hindrance to effective operation. Claims of discrimination and sexual harassment or claims related to suspensions, reductions in pay, demotions, and dismissals are not subject to the Career Service grievance process…”

Thus, under the statutes, you could have a grieving employee whose dissatisfaction may or may not be based on a violation by management of a specific written benefit or “right.”

A much narrower definition is found in the various collective bargaining agreements:

“A ‘grievance’ is defined as a dispute involving the interpretation or application of the specific provisions of this Agreement ....”

Under the collective bargaining agreements, the grievance must always be based on a violation by management of a specific written provision in the agreement.

Hopefully, this manual will be helpful to you in resolving disputes, whether grieved pursuant to statutes or pursuant to a collective bargaining agreement. This part of the manual outlines the procedure to be followed when investigating and attempting to resolve grievances. The statutes provide written procedures by which (Career Service) grievances shall be handled within each agency. Each collective bargaining agreement between the State and employee organization establishes the procedure to be followed in processing any grievance alleging a violation of the specific provisions of the agreement. Therefore, while the suggestions in this manual regarding grievance avoidance, investigation and resolution may apply to all grievances, the actual mechanics of processing a grievance will vary.

Section I

AVOIDING A GRIEVANCE

BASIC PRINCIPLES OF SUPERVISION

THE BASIC PRINCIPLES OF SUPERVISION INCLUDE:

1) Treating employees in a fair, equitable and uniform manner; and

2) Managing in accordance with Florida Statutes, agency rules, policies and procedures, and any collective bargaining agreements.

There will always be instances where, through misunderstanding or lack of communication, disagreements between a supervisor and an employee will surface. A grievance may even occur as a result of a personality conflict, or plain stubbornness on the part of the supervisor, the employee, or both.

The supervisor’s objective should be to resolve a complaint or dissatisfaction before it becomes a grievance. A grievance can, in some cases, be avoided by:

1) Listening carefully to the employee’s complaint, i.e., getting the facts;

2) Expressing an interest in the employee’s complaint;

3) Clarifying any misunderstanding or miscommunication;

4) Ensuring that the employee is fully informed as to why certain action was taken (or not taken);

5) Providing the employee with a prompt response, directed specifically to all issues raised by the employee.

To say that all or even most complaints can be settled by following the above guidelines would be an overstatement. However, the above listed steps should always be followed by the supervisor when addressing an employee complaint. These steps or guidelines can and should be followed even after a complaint is formalized as a grievance.

If a complaint or grievance is not settled at the informal stage and is reduced to writing, every effort should be made to resolve the dispute at the earliest step in the grievance procedure. The more time it takes and the higher a grievance progresses, the more solidly entrenched the parties become. The final result may leave each side a loser from the standpoint of morale, injured feelings, reduced efficiency and productivity, and cost.

Section II

PROCESSING A GRIEVANCE

WHO CAN FILE A GRIEVANCE?

ANYONE CAN BECOME UNHAPPY WITH A WORK SITUATION OR CONDITION TO THE EXTENT THAT THEY WILL CONSIDER FORMULATING A GRIEVANCE. MANY EMPLOYEES, REGARDLESS OF THEIR DISSATISFACTION, WILL NEVER FILE GRIEVANCES. HOWEVER, THE FILING OF A GRIEVANCE SHOULD NOT LABEL THE EMPLOYEE AN AGITATOR OR TROUBLEMAKER. A GRIEVANCE ACTS AS A SAFETY VALVE FOR FRUSTRATION AND OFTEN OUTRIGHT ANGER.

Section 110.227(4), Florida Statutes, states, “A grievance process shall be available to permanent Career Service employees.” This process is the Career Service Grievance Process and is only available to employees who have attained permanent status in their current position.

Chapter 447, Florida Statutes, and the various collective bargaining agreements make the collective bargaining grievance procedure available to employees covered by the agreement, regardless of whether the employee is a dues-paying member of the union. The collective bargaining agreements, in certain specific instances, will allow the union to file a class action grievance on behalf of a group of employees covered by the collective bargaining agreement. An employee who has not attained permanent status in their position is limited as to the type of grievance that can be filed.

What Is A Grievance?

SECTION 110.227(4), FLORIDA STATUTES, DEFINES A CAREER SERVICE GRIEVANCE AS:

“…the dissatisfaction that occurs when an employee bekueves that any condition affecting the employee is unjust, inequitable, or a hindrance to effective operation. Claims of discrimination and sexual harassement or claims related to suspensions, reductions in pay, demotions, and dismissals are not subject to the Career Service grievance process…”

The various collective bargaining agreements define a “grievance” as:

“…a dispute involving the interpretation or application of the specific provisions of this Agreement, except as exclusions are noted in other articles of this Agreement.”

Certain disciplinary actions also can be grieved pursuant to the collective bargaining grievance process, such as reprimands, suspensions and dismissals. The supervisor must determine at the outset whether the employee’s complaint is directed to a collective bargaining agreement, and, if so, whether the subject of the complaint is grievable.

Employee’s Choice of Remedy

CHAPTER 447, FLORIDA STATUTES, LIMITS THE REMEDIES AVAILABLE BY PROVIDING THAT:

“A career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure established under this section, but such employee is precluded from availing himself to more than one of these procedures.”

The various collective bargaining agreements also provide that if an employee has a grievance which may be processed under the contractual grievance procedure and which may also be appealed to the Public Employees Relations Commission, the employee or union shall indicate at the initial filing which procedure will be utilized and such decision shall be binding on the employee.

Representation

1) COLLECTIVE BARGAINING GRIEVANCE

The various collective bargaining agreements allow an employee to decide,

“…whether or not he shall be represented by the union. If the employee elects to be represented by the union, any decision mutually agreed to by the State and union shall be binding on the employee.”

However, if the employee decides not to be represented by the union,

“…the union shall be given reasonable opportunity to be present at any meeting called for the resolution to such grievance…”

2) Career Service Grievance

The Florida Statutes make no reference to the employee being represented at grievance meetings. However, some agency policies and procedures provide for employee representation at each step of the grievance process.

Time Limits

THE VERIFICATION OF THE TIMELINESS OF THE INITIAL FILING OF THE GRIEVANCE, AND THE TIME FRAMES FOR RESPONDING AT EACH STEP, IS AN ESSENTIAL COMPONENT OF THE GRIEVANCE HANDLING PROCESS. WHEN IT IS DETERMINED THAT A GRIEVANCE IS NOT TIMELY INITIATED OR APPEALED PURSUANT TO THE TIME FRAMES SPECIFIED IN THE COLLECTIVE BARGAINING AGREEMENT, THE THRESHOLD ISSUE IN THE DECISION WILL BE TIMELINESS, AND ACCORDINGLY, THE MERITS OF THE GRIEVANCE WILL NOT BE ADDRESSED. ALLEGATIONS OF AN UNTIMELY FILING OR APPEAL MUST BE ADDRESSED AT THE STEP IN QUESTION. FAILURE TO ADDRESS THE UNTIMELY FILING OR APPEAL AT THE STEP IN QUESTION WAIVES THE STATE’S RIGHT TO RAISE THE TIMELINESS ISSUE AT A LATER STEP.

1) Collective Bargaining Grievance

The various collective bargaining agreements provide specific time limits for filing and processing a grievance, and the warning that failure at any step of the procedure to communicate the decision on a grievance within the specified time limit shall permit the employee, or the union where appropriate, to proceed to the next step.

2) Career Service Grievance

Section 110.227(4), Florida Statutes, requires that a Career Service grievance be filed within 7 calendar days following the occurrence of the event giving rise to the grievance. Once filed, the Career Service grievance procedure contains specific time limits for the agency to communicate a decision on the grievance.

Case file management

CASE FILE MANAGEMENT IS A CRITICAL COMPONENT OF THE GRIEVANCE PROCESS. A GRIEVANCE CASE FILE IS EXPECTED TO BE ORGANIZED, CURRENT, AND COMPLETE. WHEN COLLECTIVE BARGAINING GRIEVANCES ARE APPEALED TO STEP 3 OR ARBITRATION, THE DEPARTMENT OF MANAGEMENT SERVICES WILL REQUEST THE AGENCY FILE, WHICH SHOULD BE COMPRISED OF THE FOLLOWING DOCUMENTS:

• Copy of the official grievance form initiating the grievance

• Documentation of the date of receipt of the grievance at the initial step [i.e., date stamp or signature if hand-delivered]

• Copy of all approved written extensions of time

• Meeting notes for each step meeting

• Copy of each step decision and date of receipt by the union

• Copy of the grievant’s acknowledgement of receipt of agency’s standards of conduct [disciplinary grievances]

• Copy of agency’s applicable standard(s) of conduct [disciplinary grievances]

• Date of grievant’s employment with the agency [disciplinary grievances]

• Date of grievant’s entry into current job class [disciplinary grievances]

• Copy of grievant’s position description [disciplinary grievances]

• Copy of grievant’s performance evaluations for past three years [disciplinary grievances]

• Copy of grievant’s record of prior discipline [disciplinary grievances]

• Copy of any documented counseling sessions [disciplinary grievances]

• Copy of discipline imposed including pretermination letter and final action letter if applicable [disciplinary grievances]

• Copy of any documents relied upon by management to support its position – i.e., statements of witnesses, work records, work schedules, logs, emails, internal procedures, pay records, training needs.

Steps In the Grievance Procedure

COLLECTIVE BARGAINING GRIEVANCE

Chapter 447, Florida Statutes, provides that each public employer and bargaining agent shall negotiate a grievance procedure to be used for the settlement of disputes involving the interpretation or application of a collective bargaining agreement. Such grievance procedure shall have as its terminal step, a final and binding disposition by an arbitrator, an impartial neutral party. The various agreements set out in detail the procedures to be followed when a grievance is filed alleging a violation of an agreement.

1) Oral Step

When an employee presents a grievance orally to his immediate supervisor, the supervisor has to respond within certain time limits. The employee may then, if not satisfied with the answer, initiate a formal, written grievance.

It is important at this step and all subsequent steps that management be able to document the date a grievance or appeal is received, as well as the date the employee or union receives an answer.

2) Step 1

This is the point at which the employee or union files a grievance in writing. The formal grievance, when presented at Step 1, must include:

• facts on which the grievance is based,

• specific provision(s) of the agreement allegedly violated,

• issues to be resolved, and

• relief requested.

It should be noted that while every grievance will not be artfully drafted, the grievance must include the provisions of the contract allegedly violated and with sufficient specificity for management to understand and respond to the employee’s grievance.

3) Step 2 and beyond

If the grievance is not resolved at Step 1, the grievance may be submitted to Step 2, Step 3, and finally, to arbitration. Some collective bargaining agreements provide for bypassing Step 3, therefore the grievance if not resolved at Step 2, is filed directly to arbitration.

The decision of the arbitrator, when made in accordance with his jurisdiction and authority, is final and binding on the State, the union, and the grievant(s).

Career Service Grievance

1) Step 1

The employee may submit a written grievance on a form provided by the agency to his/her supervisor within 7 calendar days following the occurrence of the event giving rise to the grievance.

The supervisor must meet with the employee to discuss the grievance within 5 business days following receipt of the grievance.

2) Step 2

If the employee is dissatisfied with the response of his/her supervisor, the employee may submit the written grievance to the agency head or his/her designee within 2 business days following the meeting with his/her supervisor.

The agency head or their designee must meet with the employee to discuss the grievance within 5 business days following receipt of the grievance.

The agency head or their designee must respond in writing to the employee within 5 business days following the meeting.

The written decision of the agency head shall be final and binding.

Section III

INVESTIGATING A GRIEVANCE

THE AMOUNT OF TIME SPENT BY MANAGEMENT INVESTIGATING A PARTICULAR GRIEVANCE DEPENDS ON THE COMPLEXITY OF THE ISSUE(S) AND THE CONSEQUENCES OF THE DECISION. GRIEVANCES CONCERNING CONTRACT ADMINISTRATION, IN MOST INSTANCES, WILL REQUIRE LESS INVESTIGATION AND RESEARCH THAN A GRIEVANCE OVER DISCIPLINARY ACTION. ALTHOUGH THIS SECTION PRIMARILY ADDRESSES COLLECTIVE BARGAINING GRIEVANCE INVESTIGATION, MANY OF THESE ISSUES MAY BE RAISED BY AN EMPLOYEE IN THE COURSE OF A CAREER SERVICE GRIEVANCE.

It is important to focus on the specific article - section - paragraph – of the collective bargaining agreement allegedly violated. The Department of Management Services can provide interpretations and/or statements of intent if you encounter difficulty interpreting the contract language.

Investigatory Process

IN ORDER TO PROVIDE UNIFORMITY IN THE INVESTIGATORY PROCESS, AND TO MAKE SURE NOTHING IS OVERLOOKED, A SUMMARY SHEET SHOULD BE PREPARED ADDRESSING THE FOLLOWING:

1) Article, section, paragraph, wording, allegedly violated;

2) Issues raised and allegations made by union or employee;

• any departure from past practice

• any lack of uniformity of treatment of employees

• any violation of intent of the agreement

3) Results of investigation, responding to each issue raised.

Grievance Issues

THE FOLLOWING SUBJECTS ARE INCLUDED AS EXAMPLES OF THE TYPES OF ISSUES THAT MAY BE RAISED BY THE EMPLOYEE ON VARIOUS ARTICLES THAT ARE GRIEVED, TOGETHER WITH APPROPRIATE MANAGEMENT RESPONSES:

Reprisals

ISSUE: BUT FOR THE GRIEVANT’S PRIOR ACTIVITY IN FILING A GRIEVANCE, HE WOULD HAVE RECEIVED THE PROMOTION, JOB ASSIGNMENT, HIGHER APPRAISAL, ETC.

Rebuttal: the grievant has not (recently) engaged in grievance activity; the employee was treated in the same manner as other employees similarly situated; there was no knowledge of the employee’s grievance activity; management had a bona fide reason for its action [other than retaliation]; management has established, well defined policies, and uniformly applies those policies.

Union Representation

ISSUES: FAILURE TO GRANT GRIEVANCE REPRESENTATIVE TIME OFF TO INVESTIGATE / PROCESS A GRIEVANCE; FAILURE TO GRANT GRIEVANCE REPRESENTATIVE TIME OFF TO TALK TO EMPLOYEE ABOUT A POTENTIAL GRIEVANCE; FAILURE TO GRANT GRIEVANCE REPRESENTATIVE TIME OFF TO INTERVIEW EMPLOYEE.

Rebuttal: prior approval was not requested by the steward;

the grievance representative’s name was not on the approved list;

the time requested [or taken] was unreasonable;

the grievance was not initiated at the first appropriate step in the grievance procedure prior to the steward wanting time off;

the time off would interfere with and unduly hamper operations of the work unit.

Classification and Reclassification

ISSUES: THE GRIEVANT WAS PERFORMING WORK NOT INCLUDED IN THE CLASS SPECIFICATION OR POSITION

DESCRIPTION;

the grievant was promised the job on a permanent basis;

the employee is performing work normally part of another class.

Rebuttal: the employee is not “regularly” required to perform duties not included in his/her position description or class specification;

the duties in dispute are part of the employee’s current job;

the employee only performed the disputed duties on an occasional basis.

Disability Leave

ISSUES: THE AGENCY HEAD HAS ALWAYS REQUESTED SUCH LEAVE IN THE PAST;

the failure of the agency to request the leave is based on union discrimination;

once approved, the agency must request extensions.

Rebuttal: the agency has no policy of requesting full pay status;

the agency has consistently followed its policy.

Out-of-Title Work

ISSUE: A VACANCY EXISTED, THE EMPLOYEE FILLED IT BUT DID NOT RECEIVE THE PAY.

Rebuttal: a vacancy did not exist;

the grievant did not fill the vacancy beyond 22 workdays within any six consecutive months;

the employee did not assume a major portion of the duties of the vacant position;

no supervisor or manager assigned the employee to the vacant position.

On-Call Assignment

ISSUES: THE EMPLOYEE WAS OFFICIALLY PLACED ON-CALL BUT DID NOT RECEIVE THE PAY;

the employee was verbally told he might be needed, with the strong implication he was expected to remain available;

the employee carries a “beeper” at all times and, therefore, is on-call.

Rebuttal: the employee was not instructed in writing or verbally that he was on-call;

the employee was not placed on-call by appropriate management;

the employee was not instructed to remain available to work during an off-period or leave word where he could be reached by telephone or by electronic signaling device;

the employee’s class/position had not been approved for on-call fee;

the employee would not have been disciplined for not being available to return to work.

Call-Back

ISSUES: THE EMPLOYEE WAS REQUIRED TO COME BACK TO WORK ON THE SAME DAY AND WAS DENIED CALL-BACK PAY;

the employee was officially required to come to work on his day off;

the employee was required to return several times but received only one call-back;

the employee lives in State housing and was required to perform work after his regularly scheduled working hours;

the employee takes telephone calls at home as part of his job; the employee was told to remain at work after his regular shift ended.

Rebuttal: housing was furnished the employee as a benefit itself for the employee who must be accessible at all times;

the employee takes telephone calls at home after hours as a condition of employment;

the taking of calls at home was a condition of and due to the nature of employment;

the employee was called back several times, but failed to satisfactorily complete the assignment each time.

Disciplinary Actions

PROCESSING A GRIEVANCE ALLEGING LACK OF CAUSE TO DISCIPLINE MAY BE EXPEDITIOUS IF THE PROPER STEPS WERE TAKEN PRIOR TO THE DISCIPLINARY ACTION. HOWEVER, IT CAN BE TIME CONSUMING, EXHAUSTING, AND EVEN FRUSTRATING, IF AN ADEQUATE RECORD WAS NOT DEVELOPED BEFORE THE ACTION WAS TAKEN. GRIEVANCE REVIEW PROCEDURES SHOULD INCLUDE AS A MINIMUM THE FOLLOWING:

1) Review the specific rule(s) under which the employee was disciplined.

Did the rule cited adequately cover the offense?

2) Review the employee’s record for relevant documents to support the action.

Have they been authenticated? Are they legible? Is the author available to testify if necessary?

3) Review the evidence. Look for inconsistencies, conflicting or incorrect statements.

4) Ensure that copies of all relevant documents are preserved.

5) Consider the availability of witnesses should the case go to an evidentiary hearing.

6) Ensure that any extenuating/mitigating circumstances raised by the employee were considered and preferably addressed.

7) Review the justification for the severity of the discipline.

8) Review past practice for consistency of severity of discipline, and uniformity of enforcement.

9) Review technical procedures for errors or omissions, and were they prejudicial, i.e., compliance with the bill of rights and predetermination procedures.

10) Consider how an impartial reviewing party would evaluate the evidence and resulting discipline.

It is beneficial to use a worksheet and make a record of the results of the review of the above factors. It is also helpful to make a list of all factors that are in favor of the proposed disciplinary action (positive factors), and a list of any problems or flaws in the proposed action (negative factors).

Worksheets are the work product of the agency and should follow the agency’s record if a grievance is appealed to a higher level. Each level of management that must review the agency’s action should review the work sheets before making a final decision. Almost any given disciplinary action will have strong points and not-so-strong points. One of the signs of a good supervisor or manager is to recognize potential problems with management’s position and weigh those potential problems objectively in making any decision regarding the grievance.

Function Of A Grievance Representative

THE VARIOUS COLLECTIVE BARGAINING AGREEMENTS SPECIFY THE FOLLOWING:

1) the grievance representative must be selected by the employee from an authorized list;

2) the union must keep the list current and be submitted to the Department of Management Services, Office of the General Counsel;

3) the time off for the grievance representative to investigate and process a grievance is limited by the agreements to specific steps and duration;

4) the grievance representative must request and obtain prior approval from his immediate supervisor;

5) before time off with pay will be granted, a grievance must have been presented at the Oral Step or higher;

6) time off cannot interfere with or unduly hamper the operations of the grievance representative’s work unit;

7) an investigation must be conducted in a way that does not interfere with State operations.

A disciplinary investigation must be formalized if it involves an employee covered by the Law Enforcement Bill of Rights [Chapter 112, Florida Statutes]. While it may be less formal for non-covered employees, the rights of the employee still must be protected.

The statute and collective bargaining agreements for law enforcement, correctional and firefighting officers contain very specific requirements as to when, where, and how such employees can be interrogated, including the employee’s right to representation.

It is important for investigations to be conducted in accordance with the law and collective bargaining agreements. It is equally important that such investigations address those issues that may be raised in an evidentiary hearing should the employee be disciplined.

Grievance Resolution and/or Settlement

INFORMED PARTIES WHO ARE OBJECTIVE IN THEIR APPROACH TO A GRIEVANCE ARE IN A POSITION TO RESOLVE A GRIEVANCE IF SUCH RESOLUTION IS POSSIBLE. THE RESOLUTION OF ANY GRIEVANCE DEPENDS, IN PART, ON THE EMPLOYEE, THE EMPLOYEE’S REPRESENTATIVE (IF ANY), AND MANAGEMENT HAVING:

1) a proper understanding of the complaint,

2) knowledge and understanding of the facts,

3) knowledge of applicable law, rules and regulations, and

4) a sincere desire to resolve differences.

The above knowledge and understanding can only be obtained by objective research and investigation.

Section IV

THE GRIEVANCE MEETING

CAREER SERVICE GRIEVANCE

THE PROCEDURE TO BE FOLLOWED IS SPECIFIED IN SECTION 110.227(4), FLORIDA STATUTES, AND IN EACH AGENCY’S WRITTEN POLICIES AND PROCEDURES.

Collective Bargaining Grievance

THE AGREEMENTS PROVIDE FOR BOTH DISCRETIONARY AND MANDATORY GRIEVANCE MEETINGS, DEPENDING ON THE STEP IN THE GRIEVANCE PROCEDURE.

Conduct of the Grievance Meeting

THE PURPOSE OF A GRIEVANCE MEETING IS TO:

1) review all relevant facts;

2) distinguish those facts jointly agreed to from those in dispute;

3) attempt to resolve disputed facts, or identify specific differences;

4) review all evidence for relevancy and credibility;

5) identify the specific issues (not just whether there was cause);

6) address each argument raised in defense of the employee; and

7) weigh the possibilities for success/failure at a higher level hearing.

Under no circumstances should the parties lose their objectivity and engage in pointless arguing. Personalities or personal conflicts cannot be allowed to get in the way of the possible resolution of a grievance. Complete objectivity leaves no room for politics and/or face saving posturing.

Listening To The Employee’s Complaint

THE MOOD OR ATTITUDE OF AN EMPLOYEE WITH A GRIEVANCE WILL VARY. WHILE ONE EMPLOYEE’S APPROACH WILL BE PROFESSIONAL AND LOW-KEY, ANOTHER EMPLOYEE WILL IMMEDIATELY BECOME BELLIGERENT AND BY HIS ATTITUDE ATTEMPT TO PROVOKE MANAGEMENT. IT IS MANAGEMENT’S RESPONSIBILITY, REGARDLESS OF THE EMPLOYEE’S ATTITUDE, TO REMAIN CALM AND PROFESSIONAL.

Before the supervisor can respond to the employee, he must first determine the source of the problem or dissatisfaction. What has been violated: a law, a rule, a procedure, a policy, or perhaps an established practice. Until the supervisor determines the cause of the problem, he will have a difficult time resolving it.

The best way to get to the problem is to simply ask the employee. The employee may want to talk around the problem. If so, the supervisor must ask specific questions and help the employee focus on the real problem or complaint.

Concern For and Interest In The Complaint

A SUPERVISOR MAY FIND IT DIFFICULT, GIVEN THE MANY DEMANDS ON HIS TIME AND ENERGY, TO GIVE A COMPLAINING EMPLOYEE HIS FULL ATTENTION AND INTEREST, MUCH LESS HIS SYMPATHY. CONSEQUENTLY, THE REAL CHALLENGE IS TO FIND OUT EXACTLY WHAT IS DISTURBING THE EMPLOYEE, AND THEN DEAL WITH IT.

Clearing Up Misunderstandings or Miscommunications

THE EMPLOYEE MAY NOT UNDERSTAND THE RULE, POLICY, OR PRACTICE THAT HAS BEEN ALLEGEDLY VIOLATED. IF THIS IS THE CASE, THE SUPERVISOR MUST TAKE THE TIME TO EXPLAIN. THE EMPLOYEE MAY BE BASING HIS COMPLAINT ON MISINFORMATION. IF SO, MANAGEMENT SHOULD MAKE EVERY ATTEMPT TO FURNISH THE EMPLOYEE WITH THE CORRECT INFORMATION.

Personality Conflicts

MANAGEMENT MAY BE FACED WITH A PERSONALITY CONFLICT BETWEEN THE SUPERVISOR AND EMPLOYEE. THIS POSSIBILITY CANNOT BE OVERLOOKED AND MUST BE DEALT WITH.

Personality conflicts are difficult to deal with. Sometimes, such problems cannot be resolved, and it is better for all if conflicting parties are separated.

Providing Full Information

ONE SIGNIFICANT HINDRANCE OR OBSTACLE TO RESOLVING GRIEVANCES IS THE SIMPLE FACT THAT THE SUPERVISOR AND THE EMPLOYEE IMMEDIATELY BECOME ADVERSARIES. THE EMPLOYEE DOESN’T WANT TO DISCLOSE ANY MORE THAN HE HAS TO ABOUT HIS COMPLAINT, AND THE SUPERVISOR IS UNWILLING OR PERHAPS UNABLE TO BE COMPLETELY CANDID WITH THE EMPLOYEE. IN ORDER TO SETTLE OR RESOLVE A PROBLEM, THE SUPERVISOR MUST TAKE THE INITIATIVE AND PROVIDE NECESSARY INFORMATION AND DATA. THIS MAY ENCOURAGE THE EMPLOYEE TO ALSO BE COMPLETELY HONEST WITH THE SUPERVISOR. BOTH SIDES ALSO MUST BE WILLING TO ADMIT MISTAKES. WITHHOLDING INFORMATION TO BE SPRUNG ON THE OPPOSITION IN THE EVENT OF A HEARING IS NOT ONLY NONPRODUCTIVE, BUT IT DEFEATS THE VERY PURPOSE OF GRIEVANCE RESOLUTION.

Promptness In Response

PROCRASTINATION IS A GREATER ENEMY TO MANAGEMENT THAN IT IS TO THE EMPLOYEE. IF THE SUPERVISOR HAS, THROUGH CLOSE QUESTIONING AND ATTENTIVENESS, MANAGED TO GET TO THE ROOT OF THE COMPLAINT, HE SHOULD THEN RESPOND TO THE EMPLOYEE AS QUICKLY AND AS COMPLETELY AS POSSIBLE. THE ATTEMPT AT PROMPTNESS SHOULD NOT, HOWEVER, BE ALLOWED TO OVERSHADOW THE NEED FOR AN ANSWER THAT IS DIRECTLY RESPONSIVE TO THE PROBLEM THE EMPLOYEE IS HAVING. WHILE THE VARIOUS COLLECTIVE BARGAINING AGREEMENTS ALLOW FOR EXTENSIONS OF TIME, FAILURE TO SUBMIT AN ANSWER WITHIN THE TIME LIMIT (OR EXTENSION) ALLOWS THE GRIEVANT OR THE UNION TO PROCEED TO THE NEXT STEP.

Section V

THE GRIEVANCE ANSWER

CAREER SERVICE GRIEVANCE

SECTION 110.227(4), FLORIDA STATUTES, PROVIDES FOR A GRIEVANCE PROCEDURE FOR CAREER SERVICE EMPLOYEES WHO HAVE ATTAINED PERMANENT STATUS IN THEIR CURRENT POSITION. EACH AGENCY HAS ESTABLISHED A GRIEVANCE PROCEDURE SPECIFIC TO THE UNIQUE MISSION OF THE AGENCY WHICH INCLUDES POLICIES AND PROCEDURES FOR THE WRITTEN RESPONSES TO GRIEVANCES FILED AT EACH STEP OF THE PROCESS. THE WRITTEN DECISION OF THE AGENCY HEAD OR THEIR DESIGNEE IS THE FINAL AUTHORITY FOR ALL GRIEVANCES FILED PURSUANT TO THIS SECTION OF THE FLORIDA STATUTES.

Collective Bargaining Grievance

THE VARIOUS AGREEMENTS REQUIRE SPECIFICITY AND ACCURACY ON THE GRIEVANCE FORM. MANAGEMENT IS LIKEWISE REQUIRED TO RESPOND TO EACH ISSUE RAISED. THE IMPORTANCE OF A CLEAR AND CONCISE ISSUE STATEMENT THAT PROPERLY FRAMES THE ISSUE(S) TO BE DETERMINED AT THE STEP IN QUESTION CANNOT BE OVERSTATED. MANAGEMENT’S ANSWER SHOULD, AMONG OTHER THINGS:

1) identify each specific article and section allegedly violated;

2) identify the relief requested;

3) address each article separately;

4) identify each issue raised and respond to each issue;

5) raise management issues (timeliness, vagueness, failure to identify the language allegedly violated, etc.);

6) include a brief statement of the relevant facts;

7) cite relevant rule(s) and statute(s) or agency policy and procedure(s);

7) include a statement of conclusion(s); and

8) include a decision based on the conclusions reached.

Section VI

CONCLUSION

REGARDLESS OF THE TECHNICAL DEFINITIONS, A GRIEVANCE IS AN OUTWARD EXPRESSION OF EMPLOYEE DISSATISFACTION. GRIEVANCE MEETINGS ARE TIME CONSUMING AND THE RESULTS CAN BE VERY NONPRODUCTIVE. HOWEVER, THE ALTERNATIVE OF LEAVING GRIEVANCES UNRESOLVED IS UNACCEPTABLE. ENLIGHTENED MANAGEMENT HAS, THEREFORE, RECOGNIZED THE NEED FOR, AND BENEFIT OF, ESTABLISHED AND FORMALIZED PROCEDURES TO DEAL WITH GRIEVANCES. SOME COMPLAINTS HAVE SUBSTANCE – SOME DO NOT. IN THE MIND OF THE COMPLAINING EMPLOYEE, NO GRIEVANCE IS IMAGINED.

A very few employees become professional grievants. Some employees will only file a grievance if forced to do so. However, a large number of employees never file grievances and, even when dissatisfied, prefer to do their work without “rocking the boat.” While every grievance should be considered important, it is the unregistered dissatisfaction that results in low morale and even the loss of a good employee.

Management should treat every complaint or grievance as important, and make every reasonable effort to resolve it. A grievance procedure works only when both parties are sincere in their desire to resolve differences.

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