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December 09, 2013

Refusing to use employer supplied equipment that was mandatory in performing the duties of the position results in dismissal of the employee


Refusing to use employer supplied equipment that was mandatory in performing the duties of the position results in dismissal of the employee
2013 NY Slip Op 08128, Appellate Division, First Department

In a number of instances employees have been disciplined because of their unauthorized use of the employer’s equipment in violation of the employer’s rules.

For example, a 15-day suspension without pay was recommended as the disciplinary penalty after the worker was found guilty of using a department vehicle for an unauthorized purpose [OATH Index No. 1976/08] while an employee found guilty of the misuse of employer’s e-mail to senda "questionable e-mail" to his co-employees was terminated [Smith v Commissioner of Labor, 296 AD2d 803].

In this case Employee challenged her termination because she refused to use equipment supplied by Employer in order for Employee to perform the duties of the position. The equipment in question: an electronic ticket issuing machine [TIM], the use of which was mandatory by individuals performing the duties of a train conductor when issuing tickets to passengers.

The Appellate Division dismissed Employee’s appeal, noting that although Employer was not obligated to exempt Employee from the system-wide mandatory use of the TIM, it had ‘engaged in a good faith interactive process and offered [Employer] a choice of positions that did not require use of the TIM, which she rejected”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_08128.htm
.

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