§ 2-185. Determination of access, grievability and compliance.

(a)

Determinations of access to the grievance procedure shall be made by the director of human resources in writing to the employee at any time prior to the panel hearing.

(b)

Determinations of grievability are made by the city manager or designated representative in writing at any time prior to the panel hearing. A copy of the city manager or designee's ruling on the issue of grievability shall be sent to the grievant.

(c)

Determinations on access and grievability may be appealed to the Circuit Court of Newport News for a hearing on the issues of whether the employee has access to the procedure, and whether the issue is grievable. Proceedings shall be initiated by the grievant by filing a notice of appeal with the city manager or director of human resources within ten (10) calendar days from the date of the receipt of the determination. Within ten (10) calendar days thereafter, the city manager or designee shall transmit to the clerk of the court a copy of the determination of the city manager or designee, a copy of the notice of appeal, and the exhibits. A list of the evidence furnished to the court shall also be furnished to the grievant. The failure of the city manager or designee to transmit the records shall not prejudice the rights of the grievant. The court, on motion of the grievant, may issue a writ of certiorari requiring the city manager or designee to transmit the record on or before a certain date. Within thirty (30) days of receipt of such record by the clerk, the court, sitting without a jury, shall hear the appeal on the record transmitted by the city manager or designee and such additional evidence as may be necessary to resolve any controversy as to the correctness of the record. The court, in its discretion, may receive such other evidence as the ends of justice may require. The court may affirm the determination, or may reverse or modify the determination. The decision of the court shall be rendered no later than the fifteenth day from the date of the conclusion of the hearing. The decision of the court is final and is not appealable.

(d)

Failure of either party to comply with all substantial procedural requirements of the grievance procedure, without just cause will result in a decision in favor of the other party on any grievable issue, provided the party not in compliance fails to correct the noncompliance within five (5) work days of receipt of written notification by the other party of the compliance violation. Such written notification by the grievant shall be made to the director of human resources. The director of human resources or designated representative shall determine compliance and may require a clear written explanation of the basis for just cause extensions or exceptions. Compliance determinations made by the director of human resources or designated representative shall be subject to judicial review by filing a petition with the circuit court within thirty (30) calendar days of the compliance determination.

(e)

The time periods outlined in this article constitute substantial procedural requirements. However, such time periods may be extended by mutual agreement between the grievant and the appropriate level of management to whom the time period is applicable. Whenever a person is required or permitted under this article to do an act within a prescribed time after receipt of a document, three (3) days shall be added to the prescribed time when the document is served by mail. In addition, if the due date for any act falls on a Saturday, Sunday, or city holiday, the next business day shall become the due date. Employees have the responsibility to report to their department head for disciplinary meetings when directed to do so. Employees shall make themselves available even when they are on administrative leave.

(f)

The determination of a complaint as "non grievable" shall not be construed to restrict any employee's right to seek or management's right to provide customary administrative review of complaints outside the scope of the grievance procedure.

(g)

The human resources department will provide procedural information and guidance to employees and management on issues of access, grievability and compliance.

(h)

The issues of access and grievability shall be decided prior to the panel hearing or they shall be deemed to have been waived.

(i)

Date of receipt is determined by the date of hand delivery or by the date indicated by a commercial carrier that delivery was made to the grievant's address on record with the city.

(Ord. No. 4250-91; Ord. No. 6036-04; Ord. No. 6679-10; Ord. No. 7388-17)

(Ord. No. 4250-91; Ord. No. 6036-04; Ord. No. 6679-10; Ord. No. 7388-17)