Employee Missing Work Without Leave Deemed by Statute to Resign
In Coleman v. Department of Personnel Administration (1991) 52 Cal. 3d 1102 [278 Cal. Rptr. 346, 805 P.2d 300] an employee was deemed by statute to have resigned because he missed five consecutive days of work without leave.
The pertinent law ( Gov. Code, 19996.2, subd. (a)), commonly known as the "AWOL" STATUTE, PROVIDES: "Absence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked. . . ."
In concluding that an AWOL employee has a due process right to a preseverance hearing but not a postseverance hearing--unlike a discharged employee, who is entitled to both--the high court emphasized the distinctions between a discharge and a resignation:
"When loss of the vested right to continued state employment results from a disciplinary dismissal, the attendant stigma of the discharge may threaten the affected employee's future livelihood.
For instance, a disciplinary discharge resulting from dishonesty or insubordination tarnishes the employee's good name and may therefore hamper the ability to obtain future employment. . . .
". . . Unlike a disciplinary discharge, resignation from state employment does not seriously damage an employee's standing and associations in the community, nor does it foreclose other employment opportunities. . . . a resignation, therefore, carries no stigma.
"There is one other significant distinction between a dismissal for disciplinary reasons and a constructive resignation under the AWOL statute: the manner in which it affects an employee's right to future state employment.
An employee who has been discharged for cause can thereafter be disqualified from taking a civil service examination. . . . by contrast, an employee who has resigned can be reinstated. . . . and in the case of a resignation under the AWOL statute, there is express language in the statute allowing for reinstatement upon 'satisfactory explanation' for the unexcused absence and a showing that the employee is 'ready, able, and willing' to resume duties. . . .
"These marked differences between a resignation under the AWOL statute and a disciplinary dismissal militate against imposing identical procedural protections in each instance. . . .
". . . Unlike a disciplinary dismissal, due process in this case does not require that the state also give the employee a postseverance evidentiary hearing at which the employee may be represented by counsel, may call witnesses, or may cross-examine adverse witnesses." (Coleman v. Department of Personnel Administration, supra, 52 Cal. 3d at pp. 1119-1122, citations and fns. omitted.)