December 15, 2010

Termination during a probationary period

Termination during a probationary period
Scott v Workers’ Compensation Board, 275 AD2d 877

The Scott case demonstrates the general rule that an individual who has been permanently appointed to a position and who is required to serve a probationary period may be terminated without notice and hearing any time after he or she completes the minimum period and prior to the end of the maximum period of probation.

Michael Scott was permanently appointed as a compensation claims referee by the Workers’ Compensation Board. His appointment was subject to a probationary period ranging from 26 to 52 weeks. Prior to the completion of his probationary period, however, Scott was terminated for unsatisfactory job performance ratings in five out of seven applicable categories on his final probationary evaluation.

Scott challenged his dismissal, contending that his termination was arbitrary, capricious and motivated by bad faith. The Appellate Division sustained the dismissal of his petition, commenting that:

Absent proof that his discharge was for a constitutionally impermissible purpose, in violation of applicable law or made in bad faith, [Scott], a probationary employee, was subject to dismissal from his employment without explanation or a hearing.

Further, in the event there is a substantial question as to whether the discharge was due to reasons unrelated to work performance sufficient to justify a court considering such a petition, the individual bears the burden of proof and must present competent proof that the dismissal was motivated by an improper purpose or bad faith.


According to the ruling, Scott’s allegation of bad faith was defeated by the Board’s showing that it complied with its obligation to periodically advise Scott of his progress after observing his conduct and to ultimately provide him with a written probation evaluation at least two weeks prior to the completion of the probationary period, as well as written notice at least one week prior to the effective date of his discharge.

Further, the court ruled, more favorable progress reports that Scott received prior to the final unfavorable evaluation were not required to be furnished to him in writing and did not raise a sufficient factual issue as to the allegations of bad faith on the part of the Board.

On the merits of Scott’s allegations, the Appellate Division found that his termination was not motivated by bad faith on the basis of (1) his final probationary evaluation and (2) the affidavits submitted by the Board to the court indicating his inadequate understanding of the Workers’ Compensation Law, (3) his failure to respond to additional training to address this deficiency, (4) his improper conduct in requesting transportation from attorneys and (4) his posing inappropriate questions to a witness.

However, there may be other factors that could affect the rights of a probationary employee.

In Gordon v Town of Queensbury, 256 AD2d 784, the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.

The court rejected Michael Gordon’s claim that his termination by the Town of Queensbury before he completed his probationary period was made in bad faith because the Town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission.

The court said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining representative, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Warren County Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.

In contrast to probationary periods flowing from appointment to a position, an individual may be given a disciplinary probation in connection with the resolution of a disciplinary action initiated pursuant to a collective bargaining agreement.

While such a probationary period may be general in nature, i.e., the individual is treated as a new employee for the purposes of probation, sometimes there are specific elements of conduct set out in the disciplinary award as to the terms and conditions of the probationary period. Such terms and conditions are controlling, as is demonstrated by in the Taylor ruling by the Appellate Division.

Taylor v Cass, 505 N.Y.S.2d 929, is an example of the impact of such terms and conditions set out in a disciplinary probation award and the limitations placed on the discretion of the appointing authority to terminated an individual serving a disciplinary probation. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed during his disciplinary probation period.

According to the ruling, 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, however, was subsequently terminated without a hearing for failing to give a fair day’s work and sleeping during scheduled working hours. Nothing was said as to his being intoxicated on the job with respect to his dismissal as a probationary employee.

Taylor sued, challenging his dismissal. He 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.

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