Disciplinary charges based on employee’s failure to appear at the disciplinary hearing

Disciplinary charges based on employee’s failure to appear at the disciplinary hearing

OATH Index No. 1633/14

An employee was charged with being absent without leave and insubordinate when she mistakenly appeared for an OATH hearing at 10:00 a.m. instead of 2:00 p.m.

OATH Administrative Law Judge Kevin F. Casey recommended dismissal of the charges because the proof did not show that the employee was given a clear directive to report to her worksite in the morning and for trial in the afternoon.

Judge Casey found there was some miscommunication and the employee had made “an honest mistake” that did not constitute misconduct.  

However, if the employee’s absence is determined to be deliberate in an effort to avoid participating in the hearing, the hearing may be conducted in absentia after the charging party has made a good faith effort to locate the individual and ascertain if his or her absence is reasonable under the circumstances.

In such cases the charging party is required to prove the alleged acts of misconduct and, or, incompetence as though the employee were present. Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation flowing from challenges to the charging party going forward with a disciplinary hearing held in absentia. 
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