March 29, 2021

Dismissal of an employee before completion of the probationary period

Citing Matter of Childs v Board of Educ. of the City Sch. Dist. of the City of N.Y., 176 AD3d 560, the Appellate Division unanimously affirmed Supreme Court's denial of the Plaintiff's petition seeking a court order annulling his former employer's determination dismissing Plaintiff from his employment as a probationary teacher. The court's decision notes that a probationary employee may be terminated "without a hearing for any reason or no reason at all, as long as the dismissal was not unlawful or in bad faith".

The court said that the record supported a finding that Plaintiff was terminated in good faith as it was based on Plaintiff's "declining performance evaluations and incidents of disciplinary misconduct" which the employer had documented over a period of several months.

As to Plaintiff's claim that he was terminated in retaliation for his reporting another teacher's alleged misconduct involving a student, the Appellate Division opined that this argument was speculative in light of the evidence in the record of Plaintiff's "deficient work performance and his disciplinary misconduct."

With respect to the termination of an employee before the competition of the appointee's maximum period of probation, in York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule with respect to the dismissal of probationary employees. In York the high court held that "[a]fter completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith."

In the event the appointing authority decides to dismiss an employee during the minimum probationary period, the employee is entitled to the notice and hearing that would otherwise be available to a tenure employee. 

Click HEREto access the Appellate Division's decision.