Court: An employee does not actually have to receive a termination notice before the end of the probationary period, as long as it's sent on time. Image: Billion Photos/Shutterstock.com
By: FEDweek StaffA federal court has sided with an agency in a dispute over removing an employee during the probationary period, saying that an agency is required only to “make reasonable efforts to inform the employee of the termination and the reasons for it prior to the end of the probationary period.”
In case No. 2023-2015, the Court of Appeals for the Federal Circuit rejected an argument by a former Bureau of Prisons employee that she was entitled to the full appeal rights applying to employees who complete those periods because she received the notice after the end of hers.
The decision recounted that about a week before the period expired, the agency put her on administrative leave without pay and that several days in advance it prepared a termination letter and directed her to report to the facility to receive it. However, she did not do so, presenting a nurse’s instructions from a medical appointment on the day of the directive indicating that she should be excused from work due to illness until the day after the period ended.
The agency then sent physical notices by two forms of delivery but she said she received neither, it added, nor a phone message until after the period ended.
The court agreed with an arbitrator in rejecting a grievance, saying that “An agency cannot rely only upon an internal decision to terminate a probationary employee without notifying the employee before the end of the probationary period. However, the regulation does not require that the employee actually receive the notice before the end of the probationary period.”
“Rather, a termination is effective if the agency does “all that could be reasonably expected under the circumstances” to timely deliver the notice,” it said, saying the efforts the agency made met that test.
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