Labor & Employment Law

Probationary employee?s probationary period extended by absences

Probationary employee?s probationary period extended by absences
Matter of Ian Garnes v Kelly, 2008 NY Slip Op 04566, Decided on May 20, 2008, Appellate Division, First Department

Following his termination while serving as a probationary police officer, Ian Garnes sued in an effort to have his dismissal annulled and be given a ?name-clearing? hearing. Although the Appellate Division noted that Garnes ?was terminable without a hearing and without a statement of the reason for his dismissal,? the court, citing York v McGuire, 63 NY2d 760 and Matter of Johnson v Kelly, 33 AD3d 297, said that Garnes failed to demonstrate that his termination was made in bad faith, was unlawful, or was for an impermissible reason.

Another significant issue considered by the court: Was Garnes serving as a probationer at the time of his termination?

The Appellate Division concluded that there was no issue as to Garnes probationary status at the time of termination. While Garnes was appointed on July 1, 2003 subject to a two-year probationary period and incident resulting in the charges and specifications against him occurred on July 8, 2005, Garnes? probationary period was extended by the use of vacation days and his placement on modified duty. Further, said the court, ?there is no requirement that [Garnes] be notified of the extension of the probationary period, citing Garcia v Bratton, 90 NY2d 991.

The impact of an absence during the probationary period was considered by the Court of Appeals in Boyle v Koch, 68 NY2 601. This case involved two probationary firefighters injured on the job. They were given extended sick leave and later provided with light duty assignments for more than a year. Their respective probationary periods were extended as a result. They were terminated as "probationers" despite their claim that they had attained tenure on the basis of their satisfactory performance of light duty.

The Court of Appeals ruled that the extension of the probationary period was proper. The employees, not having performed the full duties of firefighter for the maximum period of probation, could not claim tenure rights on the basis of their satisfactory performance of "light duty." The ruling indicates that an employer is entitled to evaluate the worker's fitness for appointment in terms of probationary performance in their "normal" assignment. As neither had completed the probationary period performing their full duties, their termination was held lawful.

Although absence[s] during a probationary period automatically extend it for a period equal in length to any such absence[s], typically the appointing officer has discretion to excuse a limited period of such absence[s]. For example, Section 4.5(g), Absence during probationary term, of the State Civil Service Commission?s Rules, applicable to employees of the State as an employer, provide that ?Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term.? Unless the appointing officer elects to consider such absence[s] as ?time served,? the probationary period is ?automatically extended.? Many local civil service commissions have adopted a similar provision.

As to Garnes? request for a name-clearing hearing, the Appellate Division ruled that the reasons for Garnes? termination are not "stigmatizing in the constitutional sense," but instead constitute instances of "bad judgment or incompetent performance of duties," holding that Supreme Court properly rejected that portion of his petition seeking a name-clearing hearing.

Full post as published by New York Public Personnel Law on May 21, 2008 (boomark / email).