45 N.C. App. 540 | N.C. Ct. App. | 1980
The Personnel Commission went beyond its authority when it reinstated defendant. The superior court erred in its conclusion that the record supported the Commission’s action and its order supporting the Full Commission’s reinstatement of defendant.
G.S. 126-35 states that, “[n]o permanent employee subject to the State Personnel Act shall be discharged, suspended, or reduced in pay or position, except for just cause.” Both the hearing
The Full Commission, pursuant to G.S. 126-37, may reinstate a state employee to the position from which he has been removed. The implication in that section, however, is that the Commission can only act to correct an abuse or where there is a wrongful denial. “We believe G.S. 126-37 must be read in conjunction with G.S. 126-35 . . . .” Reed v. Byrd, 41 N.C. App. 625, 629, 255 S.E. 2d 606 (1979).
We do not believe the General Assembly intended that the State Personnel Commission would have the power to restore a State employee to a position from which he had been demoted without some finding that the employee had been treated wrongfully. Reed, at p. 629.
The record in the case sub judice is clear. Defendant failed to perform her duties properly on numerous occasions. Plaintiff’s action in removing defendant from her position as a Personnel Technician II was justified. There was no abuse. The Commission erred by ordering defendant’s reinstatement.
Neither party questions that portion of the order which restored defendant’s due process right to appeal any final action taken by Labor Commissioner Brooks regarding her employment. That portion of the order is not before us. Our disposition of the case, of course, makes the question moot. Nevertheless, we think it is obvious that the portion of the trial court’s order is clearly correct.
We reverse that portion of Judge Braswell’s order affirming the determination by the Full Commission that the defendant be reinstated and remanding the case to the Full Commission for reconsideration of its order, not inconsistent with reinstatement of the defendant. We remand the case to the superior court for the purpose of entering judgment reversing the decision of the Full Commission and directing the Full Commission to enter an order affirming the decision of John C. Brooks, the Commissioner of Labor.
