Labor & Employment Law

Probationary employee?s right to a pre-termination hearing limited

By Harvey Randall, Esq.

Probationary employee?s right to a pre-termination hearing limited
Matter of Donald James Carroll v New York State Canal Corp., 2008 NY Slip Op 04169, Decided on May 2, 2008, Appellate Division, Fourth Department

Donald James Carroll was employed as a tender captain by New York State Canal Corporation. When Carroll was terminated before completing his probationary period he sued and obtained an order from Supreme Court directing the parties to ?conduct discovery in anticipation of a hearing.?

The Appellate Division vacated the Supreme Court?s order.

Citing Matter of Swinton v Safir, 93 NY2d 758, the court pointed out that probationary employees have no right to challenge their termination prior to the completion of the probationary period¹ unless the individual is able to show that the dismissal was made in bad faith or for an improper or impermissible reason. In this instance, said the Appellate Division, Carroll ?fails even to allege that his termination was in bad faith.?

In addition, the Appellate Division commented that Carroll?s probationary period reports were not "generally satisfactory" and that he admitted that his termination was precipitated by his refusal to comply with his supervisor?s direct order. The court said that such action ?warranted his termination for insubordination notwithstanding his contention that his refusal was justified.? The general rule is that except in ?life-threatening? situations, the employee should ?work now and grieve later.?
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¹ Case law indicates that a public employee permanently appointed to a position in the classified service and who is protected by Section 75 of New York State's Civil Service Law is entitled to notice and hearing before he or she may be dismissed during his or her minimum probationary period [see Challandes v Shew, 275 A.D.2d 369]. After completing his or her minimum probationary period, however, the probationer may be discharged without notice or hearing at any time prior to the end of his or her maximum period of probation. Agreements negotiated pursuant to the Taylor Law may provide additional rights to probationers, as well as employees not covered by Section 75.

N.B. If no "minimum probationary period" is specified and the appointment is simply made "subject to the satisfactory completion of the probationary period,? the only "window of opportunity" for termination without initiating disciplinary action is at the end of the individual?s probationary period.

Full post as published by New York Public Personnel Law on May 06, 2008 (boomark / email).