Employee terminated after being found guilty of excessive absence from work

Employee terminated after being found guilty of excessive absence from work
Matter of Wallis v Sandy Cr. Cent. School Dist. Bd. of Educ., 2010 NY Slip Op 09814, Appellate Division, Fourth Department

The Sandy Creek Central School District served disciplinary charges against school bus driver Mary W. Wallis pursuant to §75 of the Civil Service Law charging Wallis with incompetency or misconduct because of her excessive absenteeism.

Found guilty, Sandy Creek terminated her employment with the school district. Wallis appealed, contending that Sandy Creek’s determination “must be annulled because all of her absences were for legitimate reasons, including a period of time during which she was absent due to a work-related injury.”

The Appellate Division rejected Wallis’ argument, holding that as she had been found guilty of incompetency or misconduct based on excessive absenteeism the school district was “entitled to terminate her on those grounds even in the event that her ‘excessive absences [were] caused by physical incapacity.’"

Accordingly, said the court, it was irrelevant that Wallis had legitimate reasons for missing work.
The issue with respect to the charge against Wallis, said the Appellate Division, was whether her excessive absences "and [their] disruptive and burdensome effect on the employer rendered [her] incompetent to continue [her] employment."

The decision reports that:

[1] There was substantial evidence in the record establishing that Wallis was insubordinate and

[2] That her absences had a disruptive and burdensome effect on the school district. Although the record indicated that Wallis had received several warnings about her excessive absenteeism, she had an absentee rate of over 60% for a period of approximately 1½ years.

Under the circumstances of this case the Appellate Division decided that the penalty of termination of employment is not " so disproportionate to the offense as to be shocking to one's sense of fairness' " and thus does not constitute an abuse of discretion as a matter of law.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09814.htm

Existence of conflicting evidence in an administrative proceeding requires conducting a hearing “to fully develop the record”

Existence of conflicting evidence in an administrative proceeding requires conducting a hearing “to fully develop the record”
Matter of Carr v Cairo Fire Dist., 2011 NY Slip Op 00056, Appellate Division, Third Department

James A. Carr, a volunteer firefighter, suffered an injury to the back of his right hand when it was struck by a rotating hose reel handle.

Initially unable to work, while recovering Carr resumed working as a house painter, apparently performing all of his work with his left hand. Subsequently Carr complained of numbness and significant pain in both hands and applied for Workers’ Compensation Benefits.

In the Workers’ Compensation hearing that followed the Workers’ Compensation Law Judge [WCLJ] asked Carr two questions but no sworn testimony was taken, nor was Carr cross-examined by the insurance carrier's attorney notwithstanding the attorney's requesting a "full development of the record with testimony of [Carr] and treating physician,.

Rather, the WCLJ ruled that the carrier had no right to medical testimony and neither Carr’s testimony nor medical testimony was necessary. The Workers' Compensation Board affirmed the decision of the WCLJ, and the insurance carrier appealed.

The carrier argued that the WCLJ should have granted its request to develop the record by obtaining Carr's testimony and by cross-examining Carr's treating physician. The Appellate Division agreed, holding that "[E]ither the claimant or the employer or his insurance carrier may introduce witnesses . . . in compensation proceedings."

The court, noting that there was “conflicting medical evidence” and as “no formal testimony was taken at the . . . hearing,” ruled that the WCLJ’s denial of the insuance carrier's request to cross-examine Carr's attending physician to explore such issues “clearly prejudiced the employer."

The Appellate Division returned the matter to the Workers' Compensation Board “for further proceedings not inconsistent with this Court's decision.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00056.htm

Contracts for personal and related services questioned by the State Comptroller’s auditors

Contracts for personal and related services questioned by the State Comptroller’s auditors
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli reports that during the period April 1, 2006 through December 21, 2009, the Office of Temporary and Disability Assistance [OTDA] had 245 active personal and miscellaneous service contracts in place with a total value of more than $847 million.

The Comptroller’s auditors examined whether the office was adequately justifying the need to initially contract out for such services and periodically reassessing whether such contracts could be deferred, eliminated or reduced to save state funds.

After reviewing a sample of 27 contracts the auditors found that OTDA was not able demonstrate that it had formally evaluated and justified the need for any of the selected contracts nor had it periodically reassessed whether such contracts could be deferred, eliminated or reduced.

The text of the Comptroller’s report is posted on the Internet at:
http://osc.state.ny.us/audits/allaudits/093011/09s101.pdf