Administrative hearings must be fundamentally fair
Higgins v. Solomon, 82 A.D.2d 998
Although the employer said that she was unable to attend a hearing concerning her claim for unemployment insurance benefits because of her physical condition and presented a physician’s statement to that effect, the hearing officer refused to accept her affidavit as “primary evidence.”
When asked for advice by her attorney, the hearing officer replied “I can’t help you, I don’t make house calls.”
In this instance the Appellate Division ruled that the hearing officer’s action was a denial of fundamental fairness and reversed the decision, indicating that alternative means of securing admissible evidence must be investigated.
Agency heads are sometimes faced with a similar situation when an employee fails or refuses to attend a disciplinary action.
Courts have held that the employer may proceed with the disciplinary action even though the employee is not present. The hearing may proceed and the employee tried in absentia provided the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.
Indeed, there is even case law stating that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the arbitration because it believed that Hall was not entitled to the arbitration. The court upheld the arbitrator’s award in favor of the employee.