Recently, an arbitrator upheld a board’s dismissal of a tenured secretary who was excessively absent and abandoned her position. In Re Gomes, the 12-month secretary had been absent a total of 970.42 days during her 10 years of employment with the district.
During those 10 years, the arbitrator noted that the board sent memos admonishing the secretary for her absences, and withheld increments in two different years for the excessive absences. However, the arbitrator noted that no other disciplinary action was taken by the board in those 10 years.
The arbitrator was troubled by the lack of disciplinary action by the board, particularly the failure to employ progressive discipline regarding the absences in the more recent years. The arbitrator noted that “[t]he recitation of absences over a 10-year period rings hollow when the BOE failed to adequately and seriously address those issues during the course of Respondent’s employment. The BOE certainly has the right to discipline and discharge an employee who consistently fails to show for work over a period of time, whether or not those absences are excused or justified.” The arbitrator concluded that the board failed to prove its case for dismissal given the lack of progressive discipline.
However, the arbitrator also noted that the secretary failed to show up for work at all since August 2017. The board’s additional charge that the secretary abandoned her position was sustained by the arbitrator because, although she provided medical certification for her absences through October 2017, she failed to provide any further medical documentation or give any reasons for her continued absence.
The board’s policies stated that “[u]nauthorized leave shall constitute a breach of contract, and therefore, may result in the initiation of dismissal procedures, loss of salary or such disciplinary action as may be deemed appropriate.”
The arbitrator found that the board clearly established that the employee had been on unauthorized leave since October 2017. Additionally, she failed to show up for the hearing or provide any explanation for her continued absence. As such, the arbitrator found that tenure dismissal based on the job abandonment was sustained.
School board members are encouraged to discuss the procedures and requirements for dismissal of tenured employees with their board attorney. For additional information, please contact the NJSBA Legal and Labor Relations Department at (609) 278-5254.