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January 07, 2011

Employee terminated after being found guilty of excessive absence from work

Employee terminated after being found guilty of excessive absence from work
Matter of Wallis v Sandy Cr. Cent. School Dist. Bd. of Educ., 2010 NY Slip Op 09814, Appellate Division, Fourth Department

The Sandy Creek Central School District served disciplinary charges against school bus driver Mary W. Wallis pursuant to §75 of the Civil Service Law charging Wallis with incompetency or misconduct because of her excessive absenteeism.

Found guilty, Sandy Creek terminated her employment with the school district. Wallis appealed, contending that Sandy Creek’s determination “must be annulled because all of her absences were for legitimate reasons, including a period of time during which she was absent due to a work-related injury.”

The Appellate Division rejected Wallis’ argument, holding that as she had been found guilty of incompetency or misconduct based on excessive absenteeism the school district was “entitled to terminate her on those grounds even in the event that her ‘excessive absences [were] caused by physical incapacity.’"

Accordingly, said the court, it was irrelevant that Wallis had legitimate reasons for missing work.
The issue with respect to the charge against Wallis, said the Appellate Division, was whether her excessive absences "and [their] disruptive and burdensome effect on the employer rendered [her] incompetent to continue [her] employment."

The decision reports that:

[1] There was substantial evidence in the record establishing that Wallis was insubordinate and

[2] That her absences had a disruptive and burdensome effect on the school district. Although the record indicated that Wallis had received several warnings about her excessive absenteeism, she had an absentee rate of over 60% for a period of approximately 1½ years.

Under the circumstances of this case the Appellate Division decided that the penalty of termination of employment is not " so disproportionate to the offense as to be shocking to one's sense of fairness' " and thus does not constitute an abuse of discretion as a matter of law.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09814.htm

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