Thursday, October 20, 2011

Termination of an individual serving a disciplinary probationary period controlled by the terms of the stipulation providing for the disciplinary probation

Termination of an individual serving a disciplinary probationary period controlled by the terms of the stipulation providing for the disciplinary probation
Matter of Unified Court Sys. of the State of N.Y. v New York State Ct. Clerks Assoc., 2006 NY Slip Op 30641(U), [Not selected for publication in the Official Reports]

The issue before Judge Lippmann: may a union bring a contract grievance over the alleged breach of a stipulation setting a disciplinary action entered into by the parties after negotiations based on the union's collective bargaining agreement as distinguished from an alleged breach of the collective bargaining agreement itself is to be made by this court or by the arbitrator.

The stipulation provided for a disciplinary probation and thus the employee could be terminated without a hearing or any of the other procedural safeguards afforded by Article 24 of his collective bargaining agreement if he breached any of the limitations set out in the stipulation.

When the employee was summarily terminated without notice without specifying which of the several limitations he had breached, the union filed a contract grievance contending that the summary termination without notice "plainly breached both the spirit and the express terms of the stipulation,” claiming that the employee “had not violated the terms of the stipulation. The grievance was denied and the union demanded arbitration.

The Unified Court System filed an Article 75 petition seeking to stay arbitration, arguing that “under applicable law and court rules it had every right to fire [the employee], a probationary employee, as it did, and that the underlying grievance was not a contract dispute but rather a disciplinary matter affecting only one union member, whose only proper avenue of redress was to bring an Article 78 proceeding.”

Judge Lippmann said that it was well established that generally, "[absent a statute or rule to the contrary, a probationary employee may be discharged without a hearing and without a statement of reasons," provided there was no showing that the termination was for a constitutionally impermissible purpose, in bad faith, or in violation of law. [see Reynolds v. Crossou, 183 AD2d 48.]

However, said the court, although the dubbed a probationary employee, here the individual is not a probationer in this class nor subject to those legal tenets. Rather his status as a probationary employee stems solely from the stipulation, rather than from the normal course of the hiring process, thereby limiting the Court System's right to terminate him.

After exploring the several arguments made by the parties, Judge Lippmann denied the Unified Court System’s application for a stay of arbitration and granted the union’s cross-motion seeking arbitration as provided for in the collective bargaining agreement.

Significantly, UCS did not identify the reason or reasons leading to summarily terminate the individual. Judge Lippmann said that to the extent that the employee “could have brought an Article 78 proceeding challenging the factual determination “ underlying his termination, such an action was “an impossibility since … at no time was [the individual] formally notified of the reason for his termination.

The seminal case addressing disciplinary probation issue presented to Judge Lippmann is Taylor v Cass, 122 A.D.2d 885, 505 NYS2d 929. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after the court found that he was improperly dismissed while serving a disciplinary probation.

The terms of his probation provided that Taylor could be terminated 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 summarily terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division said the dismissal was improper because Taylor was not terminated for the sole reason specified in the earlier settlement: -- intoxication on the job.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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