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Wednesday, November 14, 2012

Terminating a probationary employee

Terminating a probationary employee
Wilson v City of New York, 2012 NY Slip Op 07570, Appellate Division, First Department

Supreme Court, New York County, Justice Alice Schlesinger granted a probationary New York City correction officer’s petition to vacate and annul the appointing authority's' decision to terminate him from his position and reinstated him to his former position without back pay.

The Appellate Division unanimously reversed Justice Schlesinger’s ruling “on the law” and affirmed the City’s determination terminating the correction officer from his position.

The court explained that “A probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise, absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason,” citing  Swinton v Safir, 93 NY2d 758.

Further, the Appellate Division said that the burden falls on the petitioner to demonstrate by competent proof that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason.*

There is one exception to this general proposition, however. A probationary employee appointed to a position in the Classified Service to be terminated prior to the end of his or her minimum period of probation is entitled to a hearing pursuant to §75 of the Civil Service Law or its equivalent as such probationary employees hold permanent appointment and enjoy limited tenure rights.

Courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. The rationale for this was noted in McKee v. Jackson, 152 AD2d 54. Here the court said that the probationer is entitled to a minimum period of time to demonstrate his or her ability to successfully perform the duties of the position.

In contrast, as the Court of Appeals held in Gray v Bronx Developmental Center, 65 NY2d 904, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

* The Appellate Division said that the record demonstrated that the corrections officer was terminated during his probationary period for absenteeism, violation of the appointing authority's rules by failing to report to his post on one occasion, and by being arrested for obstruction of governmental administration while off-duty  and that he "failed to sustain his burden of showing bad faith or an improper motive."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07570.htm

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