In the hypothetical situation, the agency started the disciplinary process for an employee’s failure to follow instructions (FFI). During this process, the employee went Absent Without Leave for three days. The agency already had started the process of proposing disciplining for FFI, so it proceeded to issue disciplinary action on that charge alone. A few weeks later, the agency issued a separate disciplinary action for AWOL.
Was this the right approach?
There are actually two approaches the agency could have taken. It could have cancelled the first discipline altogether and then re-proposed the discipline based on the two charges.
That said, the approach taken is fine. However, note that you cannot use the first instance of FFI as prior discipline for the second act of AWOL. MSPB’s reasoning is the employee must be given a chance to learn from prior discipline for it to be progressive. See Fowler v. USPS, 77 MSPR 8 (1997), and because the discipline was not issued before the employee was AWOL, it cannot be relied upon. All the more reason to discipline as soon as possible after an act of misconduct.
Speaking of progressive discipline, join FELTG President Deborah Hopkins for the 60-minute webinar Using Progressive Discipline in the Federal Workplace: Three Strikes and You’re Out? on June 10, starting at 1 pm ET.
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