PAP.4.12.040 Disciplinary Action Appeal Procedure
(a) Appeal Policy.
(1) It is the policy of the LCOHA to ensure fair and equitable treatment for all LCOHA employees. Therefore, all LCOHA employees have the right to appeal any suspension or termination received by an employee pursuant to Section PAP.4.12.020 of this manual. Verbal and written warnings are corrective action tools and thus are not subject to appeal.
(2) An employee who presents an appeal under the provisions of this manual will not be discriminated against or otherwise penalized for such action. If an employee is threatened or harassed at any time during the appeal process, he or she may notify the Human Resources Director in writing. The Human Resource Director will investigate, with the assistance of the Legal Department, such complaints and recommend proper action to the Executive Director. An appeal and any materials submitted in connection shall be considered confidential until the appeal process has been completed under the provisions of this section.
(b) Appeal Procedures. A formal appeal will be filed and processed in the manner described below, except that time limits may be waived or extended by written mutual consent of the parties involved.
(1) Appeal. The Employee will submit a written statement detailing the issue being appealed within three (3) working days of receiving a suspension or termination pursuant to Section PAP.4.12.020 of this manual. An Employee's failure to file an appeal within the specified time period will be considered a waiver of the formal appeal procedure and the disciplinary action will be final. The Human Resources Office will make four (4) written copies of the appeal; one copy will be given to his or her supervisor, one copy will be given to the Executive Director, one copy shall be retained by the Human Resource Director, and one copy shall be placed in the Employee's file. The original copy of the appeal will always remain with the Human Resources Office.
(2) If at any time during the process the Employee and the Employee's Supervisor are able to agree on a solution to the appeal filed, they may submit a joint statement outlining the acceptable terms to the Executive Director. If the terms are approved by the Executive Director, then the matter is settled with copies provided to the Employee and the Supervisor with a copy retained by the Human Resource Director. The Executive Director decision will be final.
(3) Once the Employee, the Supervisor, the Executive Director, and the Human Resource Department have copies of the appeal, the LCOHA Human Resource Director shall provide a copy of the appeal to the Tribal Operations Human Resource Director and the process shall continue pursuant to Section PAP.4.12.040(c) below.
(c) Tribal Operations Appeals Committee.
(1) Schedule Evidentiary Hearing.
(A) Upon timely receipt of all appeal documentation from the LCOHA Human Resource Director, the Tribal Operations Human Resource Director, or designee, will schedule an appeal committee evidentiary hearing to take place within ten (10) working days.
(B) The Tribal Operations Human Resource Director, or designee, will notify the employee and the LCOHA Human Resource Director of the evidentiary hearing date by personal delivery or certified mail at least five (5) days prior to the scheduled hearing date.
(C) The employee is limited to one (1) advocate, at his or her cost, and no more than five (5) witnesses.
(D) All employees requested to testify at an appeal, must attend the appeal hearing when directed by the Tribal Operations Human Resource Director, or designee. Failure to appear may result in a monetary fine or disciplinary action or both.
(2) Evidentiary Hearing. The appeals committee will conduct an evidentiary hearing. The members of the appeals committee shall select by majority vote a chairperson, who shall preside over the appeal and a recording secretary who shall be responsible for documenting and recording the proceedings. Any decisions or instruction by the Chair shall be final.
(A) All hearings shall be electronically recorded. The order of appearance for the Appeals hearing shall be as follows:
(i) Opening remarks by supervisor;
(ii) Opening remarks by employee;
(iii) Supervisor examination of witnesses with cross-examination by employee;
(iv) Employee examination of witnesses with cross-examination by supervisor;
(v) Supervisor and employee may redirect witnesses after examination of witnesses;
(vi) Closing remarks by supervisor;
(vii) Closing remarks by employee.
(B) The Appeals Committee shall make all decisions by majority vote. No member shall be permitted to abstain from any vote. The Appeals committee shall be permitted to take notes during the hearing; all materials shall be submitted to the Tribal Operations Human Resource Director at the conclusion of the hearing and deliberation. The Tribal Operations Human Resource Director shall maintain all recordings.
(C) The appeals committee shall determine whether the employee committed the policy violation(s) upon which the discipline is based and whether the employer followed the appropriate procedural steps established in Section PAP.4.12.020 of this manual. The employer has the burden of proving by a preponderance of the evidence whether each violation occurred and whether the appropriate procedural steps established in Section PAP.4.12.020 of this manual were followed.
(D) If the appeals committee determines that the employer failed to meet the burden of proof regarding all violations and procedural steps established in Section PAP.4.12.020 of this manual, it shall overturn the decision of the employer and order that the employee's personnel file reflect such decision; that the employee be restored to his or her previous position and that all the benefits which may have been withheld shall be credited to the employee as if no disciplinary action had ever occurred. Upon return to work, the LCOHA Human Resource Director will meet with the employee and the department head or director and development a work reinstatement plan including specific timelines and tasks for reintroduction into the workforce.
(E) If the appeals committee determines that the employer met the burden of proof regarding only a portion, but not all of the violations, it shall overturn the decision of the employer only regarding such violations and may, but is not required to, order such adjustments as it deems proper, including that the employee's personnel file reflect such decision; that the employee shall be restored to his or her previous position and - that all or a portion of the benefits which may have been withheld shall be credited to the employee as if no disciplinary action had ever occurred. Upon return to work, the LCOHA Human Resource Director will meet with the employee and the department head or director and development a work reinstatement plan including specific timelines and tasks for reintroduction into the workforce.
(F) If the appeals committee determines that the employer met the burden of proof regarding all violations and the appropriate procedural steps established in Section PAP.4.12.020 of this manual were followed, it shall uphold the decision of the employer; and shall uphold all disciplinary measures taken without substituting its judgment for that of the employer.
(G) The appeals committee shall issue a written decision within ten (10) working days which includes for each alleged claim or violation, both findings of fact and a conclusion regarding each claim or work rule violation. The decision shall be provided to each party.
(H) If either party disagrees with the appeals committee's decision, the party may appeal the decision to the Tribal Court by filing notice of appeal within three (3) working days of the decision, with a copy to the Tribal Operations Human Resource Director. The filing of an appeal by the employer shall stay any action under Section PAP.4.12.040(c)(2)(D) or Section PAP.4.12.040(c)(2)(D) above, pending resolution of the appeal by the Tribal Court. The Human Resource Director shall submit to the Tribal Court the record of the appeals committee proceedings within five (5) working days of receiving a copy of the notice of appeal. The Lac Courte Oreilles Legal Department shall be notified of all appeals and shall be provided with the entire record of the grievance and the all information submitted in connection to the appeal.
(3) Hearing before the Lac Courte Oreilles Tribal Court. Either party may request a review of the Appeal Committee's decision by the Lac Courte Oreilles Tribal Court. The Court's review will be limited to the information presented to the Appeals Committee and the limited review is to ensure that the Due Process rights of the Employee and the LCOHA were protected and followed. If the Court finds any deficiencies in the Appeals Committee's decision, it shall remand the matter back the Appeal Committee for further review consistent with the Court's findings. Each party shall have five (5) working days to submit their request for Tribal Court review of the Appeals Committee's decision; failure to abide the timeline stated in this section shall be deemed a waiver of the disciplinary appeal and the appeal shall be terminated; the Appeals Committee's decision shall be deemed as final.
(A) The Tribal Court shall have the discretion to decide whether to schedule a hearing in any employment appeal.
(B) The Tribal Court may issue a decision without a hearing after reviewing the decision of the appeals committee and the evidence submitted during the grievance and appeal processes.
(C) In all cases, the Tribal Court shall review the findings of fact and conclusions of law solely to determine whether the appeals committee committed clear error. "Clear error" means that the decision is not reasonably supported by the facts or law.
(D) If the Tribal Court determines that clear error occurred regarding all violations and procedural steps established in Section PAP.4.12.020 of this manual were not followed, it shall uphold/overturn the decision of the appeals committee and order that the employee's personnel file reflect such decision; that the employee be restored to his or her previous position and that all the benefits which may have been withheld shall be credited to the employee as if no disciplinary action had ever occurred. Upon return to work, the LCOHA Human Resource Director will meet with the employee and the department head or director and development a work reinstatement plan including specific timelines and tasks for reintroduction into the workforce.
(E) If the Tribal Court determines that clear error occurred regarding only a portion, but not all of the violations, it shall uphold/overturn the decision of the appeals committee only regarding such violations and may, but is not required to, order such adjustments as it deems proper, including that the employee's personnel file reflect such decision; that the employee shall be restored to his or her previous position and that all or a portion of the benefits which may have been withheld shall be credited to the employee as if no disciplinary action had ever occurred. Upon return to work, the LCOHA Human Resource Director will meet with the employee and the department head or director and development a work reinstatement plan including specific timelines and tasks for reintroduction into the workforce.
(F) If the Tribal Court determines that clear error did not occur regarding any violation and the procedural steps established in Section PAP.4.12.020 of this manual were followed, it shall uphold/overturn the decision of the appeals committee; and shall uphold all disciplinary measures taken by Management without substituting its judgment for that of Management.
PERSONNEL POLICIES AND PROCEDURES MANUAL
RECEIPT AND ACKNOWLEDGEMENT
I hereby acknowledge receipt of a copy of the Housing Authority Personnel Policies and Procedures of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians. This personnel policy and procedural manual contains the policies and rules that apply to me. I agree to read the manual and follow it during my employment with the LCOHA. I further understand the Tribe/LCOHA may amend this personnel policy and procedural manual at any time and that such changes will be communicated to me in writing.
Employee Signature Date
Employee Name (Printed)
Please keep a copy of this acknowledgement for your records.
CONSENT TO APPEAL PROCESS
I hereby consent, as a condition of my employment, to the exclusive jurisdiction of the Tribe/LCOHA's Disciplinary Action and Appeal procedures as set forth in this subchapter of this manual, and the jurisdiction of the Tribal Court for all disputes in connection with my employment with the LCOHA. I acknowledge that my failure to comply with time limitations for resolving a complaint or filing an appeal will preclude further consideration of any matter. I hereby waive any right I may have to litigate in another court of law, any and all claims arising out of my employment, and hereby waive any right I may have to a jury trial, and agree instead to submit any and all disciplinary action claims to the Disciplinary Action and Appeal procedures as set forth in this subchapter of this manual. I hereby consent to the application of Tribal law, both substantive and procedural, regarding all proceedings, matters and things relating to my employment relationship with the Tribe/LCOHA.
Employee Signature Date
Employee Name (Printed)
Please keep a copy of this consent for your records.
WAIVER OF APPEAL PROCESS
I hereby consent, as a condition of my employment, to participate in a Probationary Period in lieu of Termination pursuant to Section PAP.4.12.030(a)(3) of this manual. I hereby waive any right I may have to the Appeal procedures as set forth in this section of this manual through my participation in this Probationary Period in lieu of Termination. I hereby acknowledge that as a condition of my employment that I have consented to the application of Tribal law, both substantive and procedural, regarding all proceedings, matters and things relating to my employment relationship with the Tribe/LCOHA.
Employee Signature Date
Employee Name (Printed)
Please keep a copy of this consent for your records.