Wednesday, December 16, 2015

Employee terminated as the result of disciplinary action not entitled to his or her unused vacation credit accruals



Employee terminated as the result of disciplinary action not entitled to his or her unused vacation credit accruals
Kozlow v City of New York, 2015 NY Slip Op 08960, Appellate Division, First Department

The Appellate Division affirmed the City of New York’s dismissal police officer David R. Kozlow holding that substantial evidence supported the City’s finding that Kozlow had engaged in numerous acts of misconduct, including failing to follow “proper procedure in presenting a prisoner at the station house; delaying his return to the station house in order to earn overtime; abandoning a fixed post; failing to follow directions to proceed immediately to a post; writing improper comments on his monthly report; and being discourteous to supervisors.”

As to the penalty imposed, termination, the court said that Kozlow’s prior disciplinary record, which included prior dismissal probations, and in light of the number and persistency of his infractions, termination from employment does not shock its sense of fairness.

The Appellate Division also ruled that the Police Commissioner was authorized to impose the penalty of a 30-day suspension without pay and to dismiss petitioner Kozlow City of NY § 14-115[a] and that Kozlow was not entitled to his “unused accrued vacation and sick leave” upon separation from service since he was terminated from employment.

Similarly with respect to employees of the State as the employer, 4 NYCRR 23.1, provides, in pertinent part that “No employee who is removed from State service as a result of disciplinary action or who resigns after charges of incompetency or misconduct have been served upon him shall be entitled to compensation for vacation credits under the provisions of this Part.” §23.1 also provides that the appointing authority may require, as a condition for payment for unused vacation credit that the employee submit written notice of his or her resignation at least two weeks prior to his or her last day of work.

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/

Challenging Adverse Personnel Decisions 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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