April 24, 2017

Challenging an employee's termination during his or her disciplinary probation period

Challenging an employee's termination during his or her disciplinary probation period
Woods v State Univ. of N.Y., 2017 NY Slip Op 03083, Appellate Division, Third Department

In 2013 a member of a collective bargaining unit [Employee] represented by the New York State Correctional Officers and Police Benevolent Association, Inc. [Union] was placed on disciplinary probation in the course of a disciplinary arbitration conducted pursuant to the relevant collective bargaining agreement.

In 2014 the employer, State University of New York [SUNY], summarily terminated Employee from his probationary employment following a negative performance evaluation. The Union commenced a proceeding seeking to compel arbitration of Employee's termination pursuant to CPLR §7503 or, alternatively, to vacate and annul SUNY's decision terminating Employee while he was serving the disciplinary probationary period pursuant to CPLR Article 78.

Supreme Court converted the proceeding to an application to confirm the 2013 arbitration award; the Appellate Division reversed and granted the Union's petition to compel arbitration (see 139 AD3d 1322). Ultimately the Court of Appeals reversed Appellate Division's order and remitted the matter to it "for consideration of the facts and issues raised but not determined on the appeal" (see 28 NY3d 1140).

Upon remand, the Appellate Division noted that the parties had agree, and it concurred, that Supreme Court erred in treating the petition as an application to confirm the 2013 award and in remitting the matter to the arbitrator for clarification. The Appellate Division explained that "[a]n arbitrator's authority extends to only those issues that are actually presented by the parties. Thus, an arbitrator may not reconsider an award — regardless of whether the request is couched as a clarification or a modification — if the matter was not previously raised in arbitration."

The Appellate Division's decision also noted that at the commencement of the 2013 arbitration the Union and SUNY stipulated to allow the arbitrator to decide whether Employee was guilty of the past misconduct as alleged and, if so, what the appropriate penalty should have been. Significantly, the arbitrator was not asked to interpret any term in the contract or make a ruling that would define or affect the employer/employee relationship going forward and neither party sought to modify, confirm or vacate the award after it was issued.

Although the Union sought an order by Supreme Court to compel SUNY to arbitrate the 2014 termination, the Appellate Division said that this was error and Supreme Court "should not have remitted the issue for resolution by the arbitrator who decided the 2013 disciplinary action."

Addressing the Union's allegation that SUNY acted in bad faith when it decided to terminate Employee, the Appellate Division said that "[a] probationary employee may challenge a termination only by demonstrating that the dismissal was in bad faith or done for an improper reason."* Further, said the court, "a probationary employee is not necessarily entitled to a hearing or even an explanation unless there is proof that the discharge was unconstitutional or violated the law." To successfully challenge a probationary termination, the individual is required to submit "proof sufficient to raise a question of fact as to whether the dismissal was due to causes unrelated to work performance and/or improperly motivated."

Here, said the court, SUNY's submissions, "which are not disputed," confirmed that Employee "was terminated for a valid reason, that is, poor work performance."

*N.B. The decision Taylor v Cass, 122 A.D.2d 885, illustrates another the critical element for an appointing authority to consider when terminating an individual serving a disciplinary probationary period. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after demonstrating that he had been improperly dismissed while serving his disciplinary probation period. The terms of his probation provided that Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months. Taylor, however, was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” The Appellate Division ruled that Taylor's termination from his probationary employee was improper because Taylor was not terminated for the sole reason specified in the agreement settling the disciplinary action: intoxication on the job.

The Woods decision is posted on the Internet at:

The Taylor decision is posted on the Internet at:


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