Employment Security Commission v. Wells , 50 N.C. App. 389 ( 1981 )

274 S.E.2d 256 (1981)

In the Matter of EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Appellant,
v.
Steve WELLS, Appellee.

No. 8010SC433.

Court of Appeals of North Carolina.

January 20, 1981.

Howard G. Doyle and V. Henry Gransee, Jr., Raleigh, for the Employment Security Commission of North Carolina, petitioner-appellant.

Latham, Wood & Balog by James F. Latham, Burlington, for respondent-appellee.

MORRIS, Chief Judge.

We need not reach the question of whether respondent failed to carry the necessary burden of proof to show just cause for petitioner's dismissal from its employ. Rather, we decide this case on the preliminary question of whether petitioner had given respondent the proper notice of the reasons for his dismissal as required by law. G.S. 126-35 provides in part:

No permanent employee subject to the State Personnel Act shall be discharged, suspended, or reduced in pay or position, except for just cause. In cases of such disciplinary action, the employee shall, before the action is taken, be furnished with a statement in writing setting forth in numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employee's appeal rights. The employee shall be permitted 15 days from the date the statement is delivered to appeal to the head of the department. A copy of the written statement given the employee and the employee's appeal shall be filed by the department with the State Personnel Director within five days of their delivery.... (Emphasis added.)

As a permanent employee of the State, respondent was entitled to the safeguards provided.

In a recent case, this Court construed the constitutionality and effects of G.S. 126-35. Judge Martin, Harry C., stated with respect thereto:

N.C.G.S. 126-35 establishes a condition precedent that the employer must fulfill before disciplinary action against an employee may be taken. See Jones v. Department of Human Resources, 300 N.C. 687, 268 S.E.2d 500 (1980). The employer must furnish the employee with a written statement containing the specific acts or reasons for the disciplinary action and the employee's appeal rights.

In Board of Regents v. Roth, 408 U.S. 564, [92 S. Ct. 2701], 33 L. Ed. 2d 548 (1972), the Supreme Court of the United States established that a statute such as N.C.G.S. 126-35 creates an interest in continued employment that is safeguarded by due process under the Fourteenth Amendment of the United States Constitution. This interest arises from the act of the legislature and not from the contract of employment. See also Faulkner v. North Carolina Dept. of Corrections, 428 F. Supp. 100 (D.C. 1977).

The purpose of the statute is to notify the employee of the reasons for the disciplinary action and to advise him of his rights to appeal the disciplinary action....

In Matter of Luck, ___ N.C.App. ___, ___, 272 S.E.2d 607, 608 (1980).

In this instance, the only information given the respondent concerning the reasons for his dismissal was contained in petitioner's letter of dismissal. The letter dated 9 June 1978 gave only the following reasons for respondent's dismissal.

1. Violated Agency Procedure in attempting to recruit workers from Florida by phone and personal visit.

2. Required growers to use crew leaders even though workers were not a part of a crew nor did the crew leader provide any service for his fee.

3. Forced workers to work for designated crew leader even though the workers preferred not to work in a crew. Workers who questioned assignment to a crew were threatened with loss of job or deportation.

4. Violated Agency Procedure by not reporting illegal aliens.

When petitioner appealed his dismissal, he requested specific details regarding the four reasons for the dismissal. He asked for dates and the names of the individuals involved in these incidents. Apparently, he never received any of this information.

The notice, such as it was, was not given prior to the disciplinary action as required by G.S. 126-35, but it was given simultaneously with the action in petitioner's letter of dismissal.

G.S. 126-35 imposes an affirmative duty on State agencies to inform discharged employees, in writing, of the "specific acts or omissions" that were the reasons for the disciplinary action. "Specific acts or omissions" implies that these incidents should be described with sufficient particularity so that the discharged employee will know precisely what acts or omissions were the basis of his discharge. There was no specificity in any of the four charges lodged against defendant. There were no names, no dates, and no locations supplied. There was no way for respondent to locate these alleged violations in time or place, or to connect them with any person or group of persons. Furthermore, petitioner refused to correct the deficiency in its information by declining to furnish respondent with any further information upon respondent's request following the dismissal.

To require no more specificity in the notice than was given in this case would render the statute useless. An employee wishing to appeal his dismissal must be able to respond to agency charges and be able to prepare an effective representation. Respondent could do neither of these without more information than was supplied by petitioner in this case.

In accordance with our decision that respondent was not given the proper statutory notice of the reasons for his dismissal, we remand this case to the superior court with instructions that it remand the matter to the State Personnel Commission with instructions that it dismiss the action due to the lack of proper notice, and that it render respondent a remedy in accord with that dismissal.

WEBB and HARRY C. MARTIN, JJ., concur.