A probationary employee's [Petitioner] initiated a CPLR Article 78 proceeding in an effort to obtain a court order vacating the appointing authority's [Employer] decision to terminate her prior to the completion of her probationary employment. The Appellate Division unanimously affirmed the Employer's decision.
The court explained that Petitioner "failed to meet her burden of showing that [Employer] discontinued her probationary employment in bad faith." Noting that the Employer's determination was supported by documentary evidence of Petitioner's misconduct and history of tardiness, the Appellate Division, citing Matter of Adelana v New York City Dept. of Educ., 194 AD3d 463, said that there was nothing in the record to support Petitioner's argument that the Employer made its determination in bad faith.
It should be noted that should the appointing authority elect to dismiss a probationary employee before the individual has completed his minimum period of probation it must serve disciplinary charges against the employee and conduct a disciplinary hearing as provided by law or pursuant to the terms and conditions of collective bargaining agreement.
In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees 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.”
Further, the appointing authority may seek to have a probationary employee disqualified for employment in the position to which he has been appointed by the responsible civil service department or personnel officer pursuant to §50.4 of the Civil Service Law.
§50.4 in pertinent part, provides: Notwithstanding the provisions of this subdivision or any other law, the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible's certification and appointment and direct that his employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud.
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