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Monday, September 27, 2010

Disciplinary probation may result in employee being summarily terminated without further hearing

Disciplinary probation may result in employee being summarily terminated without further hearing
Wilson v Bratton, 266 AD2d 140

An individual placed in “disciplinary probation” status is typically subject termination without any further hearing or due process procedures if he or she violates the term of the probation. The Wilson case illustrates this potential for being summarily dismissed.

Lynne Wilson, a New York City police officer, petitioner was placed on “dismissal probation” after she was found unfit for duty because she was intoxicated. Since joining the police force in 1980, she had accumulated a prior disciplinary record, which included the commission of an assault while on duty, two incidents of being out of residence while on sick report, and a pattern of chronic lateness.

Although she could have been terminated for the incident involving the intoxication, she was offered a one-year “dismissal probation status.” Wilson accepted and signed an agreement which provided that “[d]uring this period the Police Commissioner may impose the penalty of Dismissal at any time without further proceedings, pursuant to Administrative Code Section 14-115(d)”.

While on probation, Wilson’s commanding officer, Captain Jeffrey Mishula, filed five “command disciplines” against her.*

Wilson was warned that her that continued tardiness could lead to her dismissal. After she was late for a 10:00 a.m. appointment with the department’s Psychological Services Unit, Wilson compounded the problem by signing in as having arrived at 11:00 a.m. although she actually arrived at 11:14 a.m. As a result, Wilson was terminated without a hearing.

Wilson grieved, claiming that department had acted in bad faith because it agreed with Captain Mishula’s recommendation to terminate her without independently investigating the facts. The grievance referee sustained Wilson’s grievance. Subsequently a State Supreme Court justice confirmed the referee’s report, granted Wilson’s petition, and ordered the department to reinstate her with back pay. The Appellate Division unanimously reversed the lower court on the law and the facts, and dismissed the case. Among the problems in the decisions by the referee and the lower court pointed out by the Appellate Division were the following:

1. The court, in confirming the report, found it significant that no formal charges were served on Wilson before her summary termination;

2. The court and the referee “inexplicably ignored” Wilson’s admission that she was an hour late to the appointment, focusing instead on the disputed 14 minutes; and

3. The lower court improperly considered testimony from Wilson’s unemployment insurance hearing, which is not admissible in court proceedings, citing Labor Law Section 537[1] and Beacham v Brown, 215 AD2d 334.

The Appellate Division concluded that the lower court misread the record and noted that “[a]bsent bad faith, a municipal agency may summarily terminate a probationary employee for any reason.” Wilson acknowledged this when she signed the agreement to dismissal probation.

As to the merits of terminating an individual for lateness, the court pointed out that “[l]ateness is sufficient grounds to terminate a probationer’s employment, particularly where, as here, [Wilson’s] late arrival at [the Psychological Services Unit] was merely the last in a long series of such episodes.”

In the Wilson case the Appellate Division concluded that Wilson had agreed in writing that she could have been fired at any time without further proceedings and that having “failed to fulfill her responsibilities after being given numerous chances by [by the department], she has no basis to argue that she was terminated in bad faith.”

In contrast, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a disciplinary probation [Taylor v Cass, 505 NY2d 929]. It seems that under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months.

Taylor, while subject to this probationary period, was terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

The lesson to be drawn from these rulings is that (1) the terms of a disciplinary probationary period must be fulfilled if the employee is to be continued in service; and (2) the employer may terminate the probationer without a hearing only if he or she fails to meet the conditions set out in the “disciplinary probation agreement.”

* Command disciplines are filed in the event an officer is late three times within a three-month period.

If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

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