Sventko v. Kroger Co.

D. E. Holbrook, J.

On December 9, 1974, plaintiff filed a complaint against defendant company alleging that she had been wrongfully discharged from her employment with defendant. The complaint alleged that plaintiff had suffered a disabling injury while in defendant’s employ on May 14, 1973; that on July 24, 1973, plaintiff filed a workmen’s compensation claim; that plaintiff was treated for her disability between May 18 and November 27, 1973; and that on November 13, 1973, plaintiff was notified that she would not be allowed to return to her job or any other job with the defendant as her employment had been terminated.

Plaintiff alleged that her employment with defendant had been terminated as retaliation for her filing a workmen’s compensation claim. Defendant filed a motion for summary judgment which was granted by the trial court in a written opinion. The trial court essentially found that plaintiff was an "employee at will” and, as such, could be discharged for any reason or for no reason at all. Further, the trial court held that, since there was a provision in the workmen’s compensation statute prohibiting "consistent discharges”, but no similar provision prohibiting discharges in retaliation for the filing of compensation claims, that the Legislature did not intend to prohibit such retaliatory discharges, nor could it be said that the public policy of the state prohibits them.

The decision below should be reversed. It is apparently true that the employment relationship present in this case was an employment at will. And, while it is generally true that either party may terminate an employment at will for any *647 reason or for no reason, that rule is not absolute. 1 It is too well-settled to require citation that an employer at will may not suddenly terminate the employment of persons because of their sex, race, or religion. Likewise, the better view is that an employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state. That the workmen’s compensation statute does not directly prohibit a retaliatory discharge by employers does not hinder this opinion. Writing for three members of the Court in Whetro v Awkerman, 383 Mich 235, 242 ; 174 NW2d 783, 785 (1970), Justice T. G. Kavanagh said:

"The purpose of the compensation act as set forth in its title is to promote the welfare of the people of *648 Michigan relating to the liability of employers for injuries or death sustained by their employees. The legislative policy is to provide financial and medical benefits to the victims of work-connected injuries in an efficient, dignified, and certain form.”

Discouraging the fulfillment of this legislative policy by use of the most powerful weapon at the disposal of the employer, termination of employment, is obviously against the public policy of our state. Justice T. E. Brennan, dissenting in Whetro, supra, said at 249; 174 NW2d at 787 :

"The function of the workmen’s compensation act is to place the financial burden of industrial injuries upon the industries themselves, and spread that cost ultimately among the consumers.

"This humane legislation was developed because the industrialization of our civilization had left in its wake a trail of broken bodies.

"Employers were absolved from general liability for negligence, in exchange for the imposition of more certain liability under the act.”

The trail of broken bodies endures and increases with time. Employers who find themselves located on that trail are eager to take advantage of the freedom from general liability provided by the act. An employer cannot accept that benefit for himself and yet attempt to prevent the application of the act to the work-related injuries of his employees without acting in direct contravention of public policy. This Court cannot tolerate such conduct. People, ex rel Attorney General v Koscot Interplanetary, Inc, 37 Mich App 447 ; 195 NW2d 43 (1972).

The Legislature had seen fit to make it a crime for an employer to consistently discharge employees before they qualify under the act in order *649 to evade the provisions of the act. MCLA 418.125; MSA 17.237(125). The Legislature has not made retaliatory discharges of the type alleged in this case a subject of any criminal sanction. This is certainly no indication on the part of the Legislature that the latter conduct is consistent with public policy.

For purpose of considering defendant’s motion for summary judgment below, the trial court was bound to accept as true all of plaintiffs factual allegations as well as any conclusions which could reasonably be drawn therefrom. GCR 1963, 117.2(1). Szydlowski v General Motors Corp, 59 Mich App 180 ; 229 NW2d 365 (1975). Therefore, the court below was bound to accept as true plaintiff’s allegation that she was discharged by defendant solely in retaliation against her filing of a lawful claim for workmen’s compensation. The court nevertheless found that plaintiffs case presented no exception to the common law right of the employer to discharge an employee at will for any reason or for no reason at all. As the court below was in error in so finding, the ruling should be reversed and the case remanded for proceedings consistent with this opinion, same to be heard on the merits.

Reversed and remanded. Costs to plaintiff.

The dissent relies on Carry v Consumers Power Co, 64 Mich App 292 ; 235 NW2d 765 (1975), as support for the "absolute rule” that an employer can discharge an employee at will and without cause. However, it must be noted that plaintiffs discharge in Carry was for cause, an act of violence during a labor dispute with his employer. That discharge was submitted to arbitration and involved a factual analysis. Furthermore, the dissent expressly quotes Carry which in turn cites Dunn v Goebel Brewing Co, 357 Mich 693 ; 99 NW2d 380 (1959). However, Dunn is also inapplicable. It involved the termination of an oral agreement between parties for a beer distributorship, not an employment relationship. Also, it must be noted that the dissent omits the footnote from the Carry quote which cites certain exceptions to the "absolute rule”. That footnote reads as follows:

"This statement does not reflect statutory provisions not here in issue, for example those which prohibit discharge of an employee for engaging in lawful concerted labor activities, 29 USC §§ 158 (a)(1) and (3), National Labor Relations Board v Fleetwood Trailer Co, Inc, 389 US 375 ; 88 S Ct 543 ; 19 L Ed 2d 614 (1967), National Labor Relations Board v Mackay Radio & Telegraph Co, 304 US 333 ; 58 S Ct 904 ; 82 L Ed 1381 (1938), or on account of race or sex, 42 USC § 2000e-2(a)(1), Alexander v Gardner-Denver Co, 415 US 36 ; 94 S Ct 1011 ; 39 L Ed 2d 147 (1974), McDonnell Douglas Corp v Green, 411 US 792 ; 93 S Ct 1817 ; 36 L Ed 2d 668 (1973), or otherwise.” Carry, supra, n 1 , at 296; 235 NW2d at 767 .

It is implicit in the rule that there are certain exceptions, including the prohibition of contravention of public policy. Carry lends support to recognizing such exception rather than denying its existence.