Appeal of Oudens

Supreme Court of New Hampshire Personnel CommissionJul 7, 1982
122 N.H. 642 (N.H. 1982)
122 N.H. 642448 A.2d 1374

No. 81-416

Decided July 7, 1982

1. Public Employees — Suspension and Dismissal — Probationary Employees Although a governmental unit has almost unfettered power to discharge a probationary employee, he may not be discharged arbitrarily, illegally, or in bad faith.

2. Public Employees — Personnel Commission — Jurisdiction The personnel commission is uniquely suited to hear claims of probationary state employees.

3. Public Employees — Suspension and Dismissal — Probationary Employees In the case of an employee who had been fired one day before his six-months' probationary period of employment with the State was to end, the personnel commission was uniquely suited to hear the claim and erred when it refused to grant the employee a hearing based on lack of jurisdiction, but on remand, the employee could only prevail if he could convince the commission that his termination was arbitrary, illegal, capricious or made in bad faith.

Law Offices of Stanton E. Tefft, of Bedford (Stanton E. Tefft on the brief), by brief for the plaintiff.

Gregory H. Smith, attorney general (E. Tupper Kinder, assistant attorney general, and Eve H. Oyer, attorney, on the brief), by brief for the New Hampshire Water Supply and Pollution Control Commission.


This appeal arises from the New Hampshire Personnel Commission's (personnel commission) refusal to grant a hearing to an employee who had been fired before the expiration of his probationary period of employment with the State.

On February 13, 1981, the plaintiff began working for the State Diagnostic Laboratories. Because of budget cuts, he was assigned on July 16, 1981, to a lower classified position in the New Hampshire Water Supply and Pollution Control Commission. On August 12, 1981, one day before his six-months' probationary period was to end, he was terminated.

[1, 2] Although a probationary employee ordinarily has no recourse when he is discharged, because a governmental unit has almost unfettered power to discharge a probationary employee, Clark v. Manchester, 113 N.H. 270, 274-75, 305 A.2d 668, 671 (1973), he may not be discharged arbitrarily, illegally, or in bad faith. Appeal of Czeslaw Pawlus, 121 N.H. 273, 274, 428 A.2d 487, 488 (1981); Clark v. Manchester, 113 N.H. at 275, 305 A.2d at 672. The personnel commission misreads Pawlus when it argues that Pawlus prevents the personnel commission from hearing appeals from probationary employees. Rather, the personnel commission is uniquely suited to hear these claims. See Appeal of Hildegard Tamm, 122 N.H. 646, 647, 448 A.2d 1373, 1373 (1982).

The personnel commission refused to consider this case because it erroneously believed that it had no jurisdiction. We remand this case for reconsideration. Of course, only if the employee can convince the commission that his termination was "arbitrary, illegal, capricious or made in bad faith" under the Pawlus test could he prevail.

Remanded.

All concurred.