recognizing that when an employee does not respond at all to his employer during the tenure of an employment dispute this lack of response may indicate that the employee has voluntarily resigned
How later courts described this case
- recognizing that when an employee does not respond at all to his employer during the tenure of an employment dispute this lack of response may indicate that the employee has voluntarily resigned
Written by the judges who cited it.
The opinion
Tyack, Judge,
concurring in part and dissenting in part.
I agree with the majority’s handling of the first assignment of error. However, I disagree with its resolution of the second and third assignment of error. To that extent, I respectfully dissent.
*604
As to the issue of damages generally, I believe that, since the trial court found significant damages to have been sustained due to the deprivation of employment without due process of law, the trial court must necessarily have considered the very issues to be reviewed upon remand. I, therefore, see no reason for additional review of these issues on remand.
As to Mr. Barney’s personal liability, I believe the trial court’s verdict was adequately supported by the evidence. Even without the benefit of
Decree v. Columbus
(Aug. 17, 1989), Franklin App. No. 89AP-247, unreported, 1989 WL 95353 , Mr. Barney should have known that a person with over two years of service as a classified civil servant has a property interest in continued employment which cannot be taken away without some semblance of due process of law. Everyone involved knew where Mr. Emanuel was and knew that he wanted to continue his employment with the city of Columbus. Everyone involved knew that Mr. Emanuel was not abandoning his employment. The fiction created by Rule XV(E) that a person who is incapable of reporting for work can be deemed to have abandoned his or her employment and then can have his or her job taken away with no recourse outside of the court system is a fiction with due process problems which all involved should have realized, including Mr. Barney.
Under the circumstances, I believe both the evidence and the pertinent law support the trial court’s verdict. I would affirm that verdict. To the extent this court does not, I respectively dissent.