November 6, 2018

An employee alleged not to possess a minimum qualification of his or her position is entitled to notice of the allegation and the opportunity to contest it

An employee alleged not to possess a minimum qualification of his or her position is entitled to notice of the allegation and the opportunity to contest it
Jakubowicz v Village of Fredonia, 2018 NY Slip Op 02059, Appellate Division, Fourth Department

Supreme Court, Chautauqua County directed that Jakubowicz, an employee of the Village of Fredonia be "fully reinstated to his former employment with full back pay and benefits retroactive to the date of his termination." The Village appealed.*

The Appellate Division first addressed "Appeal No. 2" in which the Village contended that a commercial driver's license is a minimum qualification for Jakubowicz's position as a Mechanic II in the Village and that "his failure to maintain such minimum qualification required the termination of his employment."

The court rejected the Village's claim, noting that the Mechanic II position in the Village required  possession, "at time of appointment and during service in this classification, of a valid NYS Motor Vehicle Operator's license appropriate for the type of vehicles which the employee may from time to time operate."

Explaining that due process and fundamental fairness require that a qualification or requirement for employment must be expressly stated in order for an employer to bypass the protections afforded by the Civil Service Law or a collective bargaining agreement and summarily terminate an employee, the Appellate Division said that in this instance the  requirement of a commercial driver's license is not "expressly stated."

In addition, said the court, quoting Matter of Carr v New York State Dept. of Transp., 70 AD3d 1110, while "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it", the Village in this instance offered Jakubowicz a hearing "to afford [him] the opportunity to present information to the Village why [he] should not be administratively terminated from employment." However, there is no dispute that a hearing was never held.

Accordingly, the Appellate Division concluded that Supreme Court was correct in determining that Jakubowicz's termination was arbitrary and capricious.

* The Village submitted two appeals, denominated Appeal 1 and Appeal 2, but dismissed Appeal 1 as academic in view of its ruling with respect to Appeal 2.

The decision is posted on the Internet at:


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