Article 36: Unacceptable Performance

Section 1

For purposes of this Article, an action based on unacceptable performance is a reduction in grade or removal of an employee whose performance fails to meet established performance standards in one or more critical elements.

The provisions of this Article do not apply to the removal of probationary or term employees.

Section 2

A. Before taking an action based on unacceptable performance, the Employer will notify the employee in writing of the critical element(s) for which performance is unacceptable, inform the employee of the performance requirement(s) or standard(s) that must be attained in order to demonstrate acceptable performance in their position and advise the employee what they must do to bring their performance up to an acceptable level.  The Employer may give an employee such notice at any time during the performance appraisal cycle.

B. For each critical element in which the employee's performance is unacceptable, the Employer will provide the employee a reasonable period of time (usually sixty (60) to one hundred twenty (120) calendar days, depending on the nature of the employee's duties) to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee's position.  The Employer will inform the employee that, unless their performance improves to and is sustained at an acceptable level during such period of time, the Employer may reduce the employee's grade or remove them.

C. The Employer also will inform the employee that, unless their performance in the identified critical element(s) is sustained at an acceptable level for at least one year from receipt of the written notice, the Employer may reduce the employee's grade or remove them.

Section 3

When the employee improves identified unacceptable performance to an acceptable level within the improvement period, as specified in Section 2 B of this Article, but the employee's performance in the same critical element(s) again becomes unacceptable within one year of the initial notice, the Employer may initiate action to reduce the employee's grade or remove them as set forth in Section 4 of this Article without offering another performance improvement period.

Section 4

The Employer will follow these procedures when proposing and deciding to take an action under this Article:

1. Give the employee a thirty (30) calendar day advance written notice of the proposed action.  The notice will identify both the specific instances of unacceptable performance and the related critical elements and standards.

2. Provide the employee with a copy of any information relied upon to support the proposal.

3. Advise the employee of their right to representation.

4. Grant the employee a reasonable amount of duty time, normally no more than eight hours, to prepare their response to the proposed action.  The Employer may consider a written request from the employee for additional duty time to prepare their response.

5. Give the employee the opportunity to reply to the notice orally and/or in writing within ten calendar days from the date the employee receives notice of the proposed action. The Employer may consider a written request to extend the reply period.

6. If the employee elects to make an oral reply, the Deciding Official, or their designee, will prepare a summary of the oral reply for the record.  The Employer will provide a copy of this summary to the employee and the employee's representative and allow at least one day for comment and/or correction.

7. Consider the employee's reply.

8. Give the employee a written decision letter concerning the proposed action within thirty (30) calendar days after expiration of the advance notice period. Normally, the written decision will be concurred in by an employee who is in a higher position than the person who proposed the action.  The decision letter will be issued prior to the effective date other action, and will contain the Employer's findings.  The Employer also will include a statement in the decision letter advising the employee of their rights to challenge the unacceptable performance action.  An action taken against an employee under this Article must be supported by substantial evidence.

Section 5

An employee against whom an action for unacceptable performance has been taken may challenge that action in accordance with Article 32 (Grievance Procedure) of this Agreement.

Section 6

If an action for unacceptable performance is canceled, all documentation relative to that action (or proposed action) in the employee's Official Personnel File will be destroyed, with confirmation of destruction sent to the employee.  The Employer will not destroy any documentation required to be preserved under laws, rules, or regulations.