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March 1, 2021

Terminating the services of an employee during a probationary period

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees before the completion of their required probationary period as follows: “After 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.”

Such may not the case where the individual is serving a disciplinary probationary period imposed as part of the "settlement of disciplinary charges" filed against the employee by the appointing authority.

Supreme Court had granted Plaintiff's CPLR Article 78 petition seeking [1] to annul a determination by the appointing authority [Employer] terminating Plaintiff from his position and [2] an order reinstating him to his former position with back pay. The Employer appealed the Supreme Court's ruling and the Appellate Division unanimously reversed the lower court's decision "on the law".

Plaintiff had contended that Military Law §243.9* controlled with respect his status as a probationary employee serving a "disciplinary probationary period" in this instance. The Appellate Division disagreed, holding that Plaintiff was not entitled to receive credit towards his "dismissal probationary period" for the time he was absent on military duty pursuant to §243.9 of the Military Law because "the statute is clear on its face that it applies only to probationary periods related to 'any position' to which [an individual] may ... be appointed or promoted."

Contrary to Plaintiff's argument, the Appellate Division opined that §243.9 does not, by its plain terms, apply to the dismissal of an individual serving a "disciplinary probationary period" imposed as part of a negotiated settlement agreement with an employer to resolve disciplinary charges filed against the individual. Further, said the court, "[i]f the legislature had intended the statute to apply more broadly, it would have so provided."

In addition, the Appellate Division's decision notes that "[b]ecause [Plaintiff] remained on dismissal probation at the time he was terminated, a hearing was not required."

Typically an individual serving a disciplinary probationary period may be summarily terminated from employment in the event a term or condition of the disciplinary probation is violated as demonstrated by the decision in Ramos v Coombe, 237 AD2d 713, leave to appeal dismissed 89 NY2d 981. 

In Ramos the Appellate Division held that an employee serving a disciplinary probationary period may be terminated without a hearing for violating the terms of the disciplinary probation.

In contrast, in Taylor v Cass, 122 AD2d 885, an employee won reinstatement with full retroactive salary and contract benefits after the court determined that the employee had been improperly dismissed while serving a "disciplinary probation."

The terms of the employee's probation provided that he 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. The employee was subsequently terminated without a hearing for “failing to give a fair day’s work” and for “sleeping during his scheduled working hours.” 

The Appellate Division concluded that the employee's dismissal was improper because the employee had not been  terminated for the sole reason specified in the settlement of the disciplinary action: intoxication on the job.

* §243.9 of the Military Law, probationary service, provides as follows: If a public employee or other person enters military duty before the expiration of the probationary period in any position to which he may have theretofore been appointed, or to which he may thereafter be appointed or promoted pursuant to subdivision six of this section, the time he is absent on military duty shall be credited as satisfactory service during such probationary period.  

Click HERE to access the decision of the Appellate Division in the instant case.


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