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Tuesday, March 17, 2015

Dismissed probationary employee has the burden of showing that his or termination was made in bad faith


Dismissed probationary employee has the burden of showing that his or termination was made in bad faith
2015 NY Slip Op 00896, Appellate Division, Second Department

The appointing authority terminated a probationary employee [Individual] and Individual filed a petition in Supreme Court seeking a review of his dismissal from the position. Supreme Court denied the petition and Individual appealed.

The Appellate Division said that "The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."*

In this instance, said the court, Individual failed to satisfy his burden of presenting competent proof that his termination was improper. Further, observed the Appellate Division, “The record demonstrates that the [Individual’s] performance was consistently unsatisfactory despite repeated advice and assistance designed to give him the opportunity to improve, and, thus, that his discharge was not made in bad faith.”

Accordingly, ruled the Appellate Division, Supreme Court properly denied Individual’s CPLR Article 78 petition.

* Courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

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/

A Reasonable Penalty Under The Circumstances 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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