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Thursday, November 17, 2011

Absence deemed a resignation


Absence deemed a resignation
Matter of Johnson, 41 NY2d 106l

In Johnson the Court of Appeals held that the provisions of Section 5.3(d) of the (State) Civil Service Rules were invalid as being in conflict with Section 75 of the Civil Service Law as the rule permitted an unexplained absence of an employee for more than ten days to be deemed a resignation.

In contrast, the Court of Appeals has held that where there is a contract provision negotiated pursuant to the Taylor Law providing that an unauthorized leave constituted a resignation, the employee is bound by that provision. The collective bargaining agreement expressly provided that an unauthorized absence for ten consecutive workdays would be deemed to constitute a resignation.

The Court was unsympathetic with the employee’s claim to relief, pointing out the availability of the contract grievance machinery he failed to use. The Court also indicated that this decision was not in conflict with Johnson as the issue of the parallel provision in a contract was not reached in that case. The effect here is identical to earlier decisions holding that the union and employer can bargain for something that if provided by law, rule or regulation might be struck down as unconstitutional or unlawful. (Port Authority of New York and New Jersey v. Port Authority Police Benevolent Association, Inc.).

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

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A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

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

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