Ward v. Frito-Lay, Inc.

• Decision Date: 28 January 1980
• Docket Number: FRITO-LA,No. 78-565,INC,78-565
• Citation: 95 Wis.2d 372,290 N.W.2d 536
• Parties: , 115 L.R.R.M. (BNA) 4320 Thomas M. WARD, Jr., Respondent, v., a Foreign Corporation, Appellant. *
• Court: Wisconsin Court of Appeals

Page 536

290 N.W.2d 536

95 Wis.2d 372, 115 L.R.R.M. (BNA) 4320

Thomas M. WARD, Jr., Respondent, v. FRITO-LAY, INC., a Foreign Corporation, Appellant.

^*

No. 78-565.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 25, 1979.

Opinion Released Jan. 28, 1980.

Opinion Filed Jan. 28, 1980.

Review Denied.

Ward I. Richter, Bell, Metzner & Seibold, S.C., Madison, Duane C. Aldrich, Thomas H. Christopher, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Atlanta, Ga., submitted brief for appellant; Robert A. Fredrickson and Reno, Zahm, Folgate, Skolrood, Lindberg & Powell, Rockford, Ill., of counsel.

J. Richard Long and William T. Henderson, Beloit, submitted brief for respondent.

Before DONLIN, P. J., and FOLEY and DEAN, JJ.

FOLEY, Judge.

Frito-Lay appeals from a judgment awarding actual and punitive damages to Ward for his allegedly wrongful discharge from employment. Ward's discharge resulted from his relationship with another Frito-Lay employee. Because we conclude that Ward has failed to prove his cause of action for wrongful discharge, we reverse the judgment and remand the matter to the trial court with directions to dismiss the complaint.

Ward did not have an employment contract with Frito-Lay and, traditionally, in the absence of a specific contractually set term, an employer could discharge an employee at any time and for any or even no cause. Annot., 62 A.L.R.3d 271 (1975); 56 C.J.S. Master and Servant § 48 (1948); Goff v. Massachusetts Protective Ass'n, Inc., 46 Wis.2d 712, 176 N.W.2d 576 (1970); Forrer v. Sears, Roebuck & Co., 36 Wis.2d 388, 153 N.W.2d 587 (1967). The general rule has been modified in other jurisdictions to permit recovery where the discharge violates some clear and specific public policy or where the discharge is retaliatory or is motivated by bad faith or malice. Ward asks this court to adopt this modification in this case.

The public policy exception was first acknowledged in Petermann v. International Brotherhood of Teamsters, Local 396, 174 Cal.App.2d 184, 344 P.2d 25 (1959). Petermann was discharged for refusing his employer's direction to commit perjury before a legislative committee. The court concluded that because perjury was a crime, asking an employee to commit perjury violated public policy. The court balanced this public policy against the unlimited right of an employer to discharge an employee at will and held that a cause of action should be recognized to discourage violation of the public policy. The court defined public policy as those principles that require restrictions on private contractual dealings for the good of the community. The court stated that any action that contravened good morals or established interests of society violated public policy.

The Indiana Supreme Court has also allowed an action for wrongful discharge. In Frampton v. Central Indiana Gas Company, 260 Ind. 249, 297 N.E.2d 425 (1973), the court ruled that an employer could not discharge an employee for filing a worker's compensation claim. The court stated that the worker's compensation laws embraced a fundamental, well-defined and well-established public policy. Strict employer adherence was required to effect that policy. The court said, "when an employee is discharged solely for exercising a statutorily conferred right an exception to the general rule must be recognized." Frampton, supra, 260 Ind. at 253, 297 N.E.2d at 428.

In Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975), the Oregon Supreme Court held that a cause of action existed on behalf of an employee discharged because he served jury duty. The court reasoned that because juries are fundamental to our system of justice, we should encourage service on juries. An employer should not be allowed to discharge an employee for serving on a jury.

Other cases in which courts have allowed a cause of action for wrongful discharge include: Stewart v. Travelers Corporation, 503 F.2d 108 (9th Cir. 1974), where an employee was discharged because his wages had been garnished, and such a discharge was forbidden by statute; Glenn v. Clearman's Golden Cock Inn, Inc., 192 Cal.App.2d 793, 13 Cal.Rptr. 769 (1961), where an employee was discharged for participating in union activities; Montalvo v. Zamora, 7 Cal.App.3d 69, 86 Cal.Rptr. 401 (1970), where an employee was discharged for hiring an attorney to represent him in negotiations; Pierce v. Ortho Pharmaceutical Corporation, 166 N.J.Super. 335, 399 A.2d 1023 (1979), where an employee was discharged for refusing to help market a drug she believed to be hazardous. ¹

The reasoning of the cases recognizing a cause of action for wrongful discharge persuades us that it is not in the public interest for courts to uniformly honor private contractual rights when to do so would contravene public policy. The facts of this case, however, do not prove a wrongful discharge in violation of public policy. Ward was fired because his relationship with a fellow employee, Judy Johnson, was causing dissension at the Frito-Lay plant. Ward and Johnson, although not married, were living together at the time, and Johnson had tried to bid onto the same shift as Ward. Frito-Lay had a rule against relatives working on the same shift, and their relationship had caused employee comment, insubordination, and the filing of a grievance. ² Frito-Lay felt that both Ward and Johnson could not continue to work at the plant. Ward was fired because of this and not because he was attempting to exercise some statutorily or constitutionally guaranteed right or perform some public duty. Frito-Lay made a business judgment, and the court should not second-guess that judgment absent a clearly defined and well-established public policy.

Ward asserts that sec. 111.01, Stats., creates a public policy in Wisconsin in favor...