A termination effective at the end of the appellant’s tour of duty does not satisfy the requirement that the appellant be terminated before the end of his final tour of duty. Image: Andrey_Popov/Shutterstock.com
By: FEDweek StaffIn a decision that underscores the difference that the probationary period makes in a federal employee’s appeal rights, the MSPB has found that an employee had gained the full appeal rights for employees who have completed their probationary period, a decision that came down to just a few days.
To remove an employee before those rights kick in an agency must notify the employee in writing before the end of that period, which is “when the appointee completes his scheduled tour of duty on the day before the anniversary date of his appointment,” the MSPB said in case No. 23 MSPB 18.
The ruling recounted that the employee was hired on January 22, 2017; on January 11, 2018 the agency notified him that he would be separated before the one-year period ended unless he resigned by January 15; on January 16 he resigned effective January 22; he refused the agency’s request to make the resignation effective on January 19; and on January 19, the agency issued a notice of removal effective at the close of business that day.
“The appellant’s appointment anniversary was Monday, January 22, 2018. The day before that was a Sunday, which was not a scheduled workday for the appellant. Under such circumstances, the Office of Personnel Management regulations provide that the probationer must be terminated before the end of the tour of duty on Friday,” according to an MSPB summary
“Here, the agency terminated the appellant on Friday, January 19, 2018, “effective at the close of business.” A termination effective at the end of the appellant’s tour of duty does not satisfy the requirement that the appellant be terminated before the end of his final tour of duty,” it said.
The MSPB agreed with a hearing officer that the employee had gained the due process rights of a tenured employee, that the agency had denied him those rights, and that the employee should be reinstated. It rejected the agency’s argument that the employee would have left within days anyway due to the resignation, saying the employee had resigned only to avoid termination.
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