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Revisiting the Probationary Period--One More Time

By Phil Varnak

Monday, June 2, 2008

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Phil Varnak operates his own consultant business, Phil Varnak Associates, which specializes in working with and training management and union representatives to resolve employee issues at all levels. A retired Federal HR Director who specializes in Labor and Employee Relations and Dispute Resolution, Phil has authored or co-authored four books dealing with Federal issues. His website for information on available training courses and books is www.pvarnak.com.

A recent case involving the Air Force Reserves (Fitzgerald v Department of the Air Force, Docket No. SF-315H-08-0119-I-1, May 12, 2008) provides additional interpretation to the definition of an "employee" under 5 U.S.C. § 7511(a)(1)(A)(ii). This issue has been discussed in this forum on earlier occasions and this adds to the body of cases regarding proper procedures to follow for termination of employees serving a probationary period.

It is widely accepted that the termination of employees serving a probationary period are generally accomplished with limited appeal rights. However, as we have seen from numerous cases over the past 9 years, the appeal rights of employees who have previously completed a probationary period deserve a closer look to properly assure employee appeal rights are not being violated.

This latest case involves service as a National Guard Technician (NGT) wherein the employee satisfactorily completed a probationary period. While the Board acknowledges that service as an NGT does not confer rights of appeal under 5 U.S.C. § 7511(b)(5) , the rights of the appellant as a NGT are not at issue here.

In this case, the appellant was terminated from a position of Air Reserve Technician (ART), a position to which the appellant transferred after completing his probationary period with the National Guard. He was originally appointed as an Aircraft Mechanic, WG-10 on an excepted service appointment and converted to a career-conditional appointment in the same position after satisfactorily completing a one-year probationary period.

The appellant was then appointed to a like position with the Air Force without a break in service. The Air Force appointment was made as an Aircraft Mechanic, WG-10 in the competitive service. This Air Force Technician position was "subject to the completion of a 1-year probationary period." He was subsequently terminated from this position during the 1-year probationary period and appealed to the MSPB. In reviewing this case, the Board determined that the appellant met the definition of an employee under 5 U.S.C. § 7511(a)(1)(A)(ii) which affords the appellant appeal rights to the MSPB.

For Employee Relations Specialists, this is another case to closely review when determining appeal rights of an employee being terminated during a probationary or trial period. The case law has consistently provided full appeal rights when an employee has satisfactorily completed a probationary period in a similar position and transferred to the current position without a break in service. Even though the SF-50 on the latest appointment requires a probationary period, the employee may have full appeal rights on the termination because of a previously completed probationary period.

© 2009 Phil Varnak. All rights reserved. This article may not be reproduced without express written consent from Phil Varnak.

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Readers' Comments

  • The government does a terrible job in attempting to work with employees that need assistance. Termination does not resolve problems, it just makes things worse. If supervisors sat down to understand the issues and worked with the employee, then every party will end up in a win/win situation. It is b...
    Posted: November 27, 2008 1:27 PM
  • I agree that ER Specialists need to closely review such cases when determining appeal rights. I would like to suggest that many of these situations could be avoided if ER Specialists and Staffing Specialists sat down and reviewed the highlights of probationary period case law. Once Staffing Specia...
    Posted: October 30, 2008 1:08 PM
  • Was the appellant considered a preference eligible so he only had to serve one year under his excepted appointment? If he was not a preference eligible and under an excepted service (VRA, SCEP) he would have to have served 2 years on continuous service in order to have completed his probationary ...
    Posted: June 3, 2008 10:44 AM

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