*1 Appellant, DARE, Plaintiff JACQUELINE v. CO., Defend- MARKETING MONTANA PETROLEUM Respondent. ant and No. 83-542.

Submitted on Briefs March 1984. Sept. Decided 1984.

687 P.2d 1015. *2 appellant. Nye Meyer, plaintiff and Billings, & Herndon, Munro, *3 Billings, & for defendant Harper Opinion of the delivered the MR. JUSTICE WEBER Court. summary judgment granted

Jacqueline appeals from Court, Yellowstone District by the Thirteenth Judicial Marketing Com- in Petroleum County, favor of Montana her arising from termination pany on her claims for relief employment. We reverse. the District Court is whether appeal

The sole issue on defendant summary judgment in granting erred employer. station attendant cashier and

Jacqueline Dare worked as a July Billings in Husky service station at defendant’s agree- hired oral She was January 1982 to 1983. her Bertrand, was also who by manager ment Dick supervisor. in instructions specified

Employee responsibilities were instruc- These managers. to station company furnished began tions with the admonition: “Managers: Following must cov- are some items that employees during ered and their understood all new training period.” parties dispute manager re- whether Dick Bertrand

viewed these instructions with Dare or she in fact policies in- knew of the listed in these instructions. The employee appear- duties, structions defined conduct and They any disciplinary ance. did not include or termination procedures. paragraph stating: The instructions contained a existing employees

“We draw from our to fill most of our open positions. manager employee continually An who re- quires supervision personal little or no ini- and shows some wanting tiative in to learn the of the ins/outs do/don’ts petroleum retailing likely field will most have a station of his in own the not too distant future.” began working July per in for defendant at $3.35 pay per hour. Her was raised to hour in October $3.65 she received health insurance benefits. She stated her deposition promised that she was another raise three months, but never received it. She also Bertrand said told bookkeeping. her he wanted her to learn to do the station’s deposition January Dare stated that on she 22,1983 yard coming fell her front when home from work. She hospital given went to the and was a neck brace to wear. As fall, a result of she was ill she before went to work on Sunday, January 23, 1983. Dare called ask if a co-worker to place, she would work in Dare’s but she could not. Dare p.m. p.m., went to work 2 and worked until around when she called Bertrand and told him she wasn’t sure she complete try. could her shift. Bertrand told her to She took pain pills up garbage some and threw in the Acan. cus- tomer called Bertrand to him inform of Dare’s condition. *4 coming her, Bertrand called Dare “I back and told am you, get you’re work for I and when fired.” designated Bertrand claimed Dare refused to clean areas despite warnings verbal on two occasions. He claimed he hang men around the station having had warned her about worked, he had while that on numerous occasions she but standing at men and women entered station and found fries while eating hamburgers french counter claimed Dare trying was to wait on customers. Bertrand early one occasion and that closed the 5 minutes on station early for immediate dismis- closing grounds he her was told it promised would not though sal. He claimed that even she closing early. her happen again, he twice witnessed later placed 1982 he Bertrand states that on December her be dismissed probation days, telling on for 30 she would not He stated that performance improve. if her did work work, being sick to complaining her “constant” calls too “getting were responsibility and lack of coming late too much.” Bertrand had deposition although

Dare stated in duties, cleaning employees warned her and all station about She stated that one anything. she never refused to clean up fully clean warning resulted from her failure She stated that men’s restroom after the toilet overflowed. equipment management provided gloves or other had not cleanup not want to touch it.” She for and that she “did hanging friends around stated she was never warned about hanging no around were friends the station because there employees against all said Bertrand warned the station. She allowing hang men to around. early on Christmas Eve

Dare admitted 5 minutes closing Ber- after xh hours. She claimed no customers came for early grounds dismis- was for closing trand did not tell sal, her or let the owner catch simply but told her not to early any closing “in denied she would be trouble.” She Moreover, she stated than Christmas Eve. occasion other her months only during she missed work illness once was never told she employment. Finally, she stated she she admitted probation,” although being placed was “on performance unless her work Bertrand had told her that However, she states improved she would be terminated.

279 that was she later told on several occasions that she was doing an job. excellent

Dare filed suit had claiming wrongfully she been dis- work, for charged though too ill she becoming to even had prior no history employer of illness. She also claimed breached the im- dealing covenant faith and fair plied in the employment relationship. She demanded rein- statement, mental, earnings, lost damages emotional distress, punitive damages financial and costs.

Defendant for summary judgment alleging moved genuine was no as any issue to material and that fact de- was fendant as judgment entitled a matter of law. The motion was parties stipulated briefed and the to submission on briefs argument. without oral Gates v. Montana Insurance argued Life of Company (1982), 178,] 1063, Mont. P.2d St. [196 16, Rep. 39-2-503, “modified” Section MCA. That section states:

“An employment having specified may no term be termi- nated at the will party of either to the notice other Nye Department Gates v. Dare argued that under (Mont. 1982), Livestock 222,] Mont. 639 P.2d [196 St. Rep. as rely cannot a matter of law upon the concept employment of at will justify indis- criminate of employment. termination She contended that duty faith and dealing fair and the tort of wrongful discharge override the at will employment con- cept. She that summary judgment improper contended was because there genuine were issues of fact as material her employer these or breached duties violated public policy in her termination.

The District summary Court granted judgment to defend- ant. The court plaintiff reasoned that had failed to public any policy violation, required show as to sustain an action for wrongful discharge, regula- no or because rules ignored tions were misapplied or here as was the case Nye. Further, no covenant of the court reasoned that employ- faith and fair could be Dare’s dealing hand- relationship no ment because there was in Gates. Finally, covering employee discharge book summary on Dare’s claim for emo- granted judgment court tional, court had mental and financial distress because the claims granted summary underlying on Dare’s judgment no plaintiff presented and because the had court concluded appeals claim. from the sum- supporting evidence granted by the mary judgment District Court. summary rules are well set regarding judgment *6 summary encourage ju is to purpose judgment

tled. The of economy unnecessary Summary by eliminating dicial trials. in complaining will where the judgment upheld be cases of and party fails to the existence material demonstrate facts made substantial that would alter the decision below.. However, trial not a substitute for summary judgment is controversy appellate factual standard where a exists. mo grant summary for of a judgment review or denial of a initially trial by tion is the same as that used the court 56(c), prop summary judgment a is under Rule M.R.Civ.P.: is no issue erly granted appears genuine when “that there it moving party is entitled any to material fact and that the any to If as to judgment as a matter of law.” doubt summary of for it should propriety judgment, a motion (Mont. 1984), Reagan v. Co. Union Oil be denied. [208 131, Here, 953, 956, we 1,] St.Rep. 675 41 134. Mont. P.2d require material which reversed genuine find issues of fact summary by of the District Court. granted judgment de- alleges wrongfully discharged she was dis- wrongful This tort of fendant. Court addressed the (Mont. 1982), Nye Livestock Department v. charge of Nye, we 222,] 498, In St.Rep. P.2d 49. Mont. 639 39 [196 stated: may an at discharge apply tort to wrongful

“. . . of [T]he fact, wrongful theory In will situation. response has to the harshness discharge developed

281 application employ- doctrine, of the will at under which an may ment be terminated without cause .... The determi- upon nation of whether the cause of action arises rests unjustified Dare, an unfair or termination was violation of public policy. Keneally Orgain (1980), v. ^[186] Nye, St.Rep. [1,] 127, Mont. 606 P.2d 154.” P.2d at Rep. 502, 39 St. at 53. Nye, may

In we found that rules administrative public policy support source of a a which would claim of wrongful discharge. Department We held that the of Live- public policy by failing apply plain- stock had violated to to department employee, regulations regarding tiff, a its own employee discipline Nye, 502, 639 P.2d termination. St.Rep. at 53-54. Keneally Orgain (1980),

However, in v. 186 Mont. plaintiff-employee P.2d we found that the had failed public policy necessary support show a violation of wrongful discharge alleged action. Plaintiff that he had unjustly complaining been terminated his company upon that the promises sold its business machines based adequate service, maintenance then but provide promised failed maintenance and service. emphasized employer’s legitimate This Court interest protecting operational procedures disrup its normal *7 Keneally, citing 6, tion. 129-30, 186 Mont. at at P.2d Geary (1974), Corp. v. United States 171, Steel 456 Pa. A.2d 178-79. alleges tending firing facts to show was that her

unjustified and contends that she was fired because she was though history missing work, too ill to even she had no of granting summary judg work due to illness. In defendant’s wrongful discharge claim, ment motion on Dare’s the Dis ig trict Court stated that no administrative rules been had misapplied Nye. they Dare, nored or had in as been upon rely However, it is not essential that Dare or establish precisely Nye. theory the set in same facts and forth Public policy may conceivably violations or arise other facts theories. of mate remaining genuine issues

The record discloses discharge claim. The wrongful rial fact Dare’s regarding per of Dare’s work parties widely divergent versions relate re her It therefore formance and reasons for termination. issues, including mains for trier of fact to resolve these the she was fired the reason for Dare’s termination Further, opportunity an cause. Dare is entitled to argu present public policy in her support authorities supported by developed as facts at trial. ments the cove- employer also contends that breached in the will dealing implied at nant of faith fair ruled that this employment relationship. The District Court in case because there implied covenant could not be this by the em- promulgated no employment was handbook dis- Gates The this to be a critical ployer, as in court found handbook, Dare’s tinction such a and ruled without con- claim District Court must fail. We conclude that narrowly. Gates too strued im is dealing faith

Whether a covenant manifesta plied particular depends upon objective case employee’s reasona employer giving tions rise to the security ble he and will be treated job belief that or she has Gates, St.Rep. pres 20. The fairly. 638 P.2d at employment ence of such facts indicates that the term of contemplated in the gone beyond period has the indefinite 39-2-503, MCA, statute, and is employment at will Section In objective basis. upon founded some more secure and investment of cases, protects such implied covenant accepts em employee faith and maintains who long is so ployment reasonably believing job their secure employee Such an they perform satisfactorily. their duties em protected or unfair treatment bad faith due to the may subject ployer employee to which the many present inequality bargaining power inherent seeks to covenant relationships. interests of the strike a balance between the *8 controlling employee the work force and interests of Gates, in job security. Rep. 638 P.2d at 39 St. 1066-67, 20. promul

We hold that an handbook Gates is not gated employer a cause of essential action for breach of implied good covenant of faith and fair dealing. Implication of depends upon the covenant exis objective tence of employer manifestations giving rise employee’s to the reasonable belief that he or she has job security fairly. and bewill treated

Contrary contentions, to employer’s are remain- ing genuine issues of fact to material Dare’s claim for breach implied of the covenant of faith and fair deal- ing. has alleged given Dare that pay she was a raise after promised months and another raise in pay an additional She months. has alleged also that told her Bertrand he her wanted learn do the bookkeeping. station’s claims that she was doing job told she was and was not, contends, as Bertrand placed probation. She con- tends that employer her had a policy existing written that employees who independence demonstrated initiative were likely most managers become station for the com- pany. The employer denies basis any had to be- lieve she had job security.

The existence of this issue of sum- precludes material fact mary judgment. Further, if implied the covenant this case, there remain material fact issues regarding Dare’s breached the covenant in the context of this case.

Finally, Dare contends that District erred in Court granting defendant’s motion summary judgment for as to emotional, claim distress. mental and financial We agree. appears It the court granted summary judgment on granted this claim summary because it on Dare’s judgment underlying claims for relief. In of our light reversal sum- mary judgment on Dare’s wrongful discharge claims, covenant of dealing summary faith and fair Dare is enti- also be reversed. judgment on this claim must re- damages alleged of the present tled to evidence at trial *9 implied of the or breach sulting wrongful discharge emotional, finan- mental or covenant, of including evidence cial distress. is District Court by the summary judgment granted

The for trial. the cause is remanded reversed and JUSTICES HASWELL and MR. MR. CHIEF JUSTICE HARRISON, and SHEA concur. SHEEHY GULBRANDSON, concurring. specially

MR. JUSTICE ma- is said the in all that I concur in the result but not jority opinion. follows: specially concurs

MR. JUSTICE MORRISON parameters the I effort to define applaud majority’s I relationship. employment principles those that control major- in all that is said result but not concur ity opinion. mod- has not this Court

First, made clear that it should be At statutes. amend Courts cannot ified the “at will” statute. applicable ignore opinions though judicial times it seems as case here. statutes. That is not the for “at 39-2-503, provides MCA my opinion, In Section The specified. is specific term no employment will” where nothing to has but employment refers to the term statute In other. to the party either obligations do with owed terminated may be words, though other even may breached, breach that will, is legal obligation if a action. separate rise to a tort give a holding that District Court refers to the majority The to sustain in order required policy violation is public in Gates decisions Following our action. wrongful discharge 178, (1982), Mont. Co. 196 Insurance Montana v. Life of Co. Insurance v. Montana Gates P.2d 1063 and 638 Life St.Rep. P.2d (Mont. 1983), Mont. ] [205 held that We application. had broader law dealing, good fair there is an covenant of faith and gives the breach of which an in tort. The old rise to action wrongful discharge premised public policy upon a vi- action recognized olation was subsumed in new for the this tort appeal. public policy Gates All vio- first time the second undoubtedly lations would involve a breach of covenant of dealing. obligation faith and fair The owed under encompasses covenant is broader re- more lated conduct. majority states that: dealing

“Whether a im- covenant of faith and fair is plied particular depends upon objective in a case manifesta- employer giving employee’s tions rise to reasona- job security ble belief that he or she has will treated fairly.” disagree. dealing

I The covenant of faith and fair *10 implicit every employment irrespective in contract of a rea- regarding job security. imposes sonable belief The an law obligation upon employers fairly absolute good to in deal and employees faith with their from the commencement of employment relationship. give the Facts rise an in- that to job security might help ference of in the future determine fairly whether there was a breach of the covenant to deal necessary in faith, and but are not to the existence of the covenant itself. surrounding

There seems to be much “at will” confusion employment employees and under what thus circumstances clarification, situated can be terminated. For and since this specially concurring opinion entitling is me to take some my thoughts subject. license, I volunteer on All con- this employment specified tracts of “at will.” without a term are part 39-2-503, statute, Section MCA. This which becomes every authority subject higher contract, of is of the to the II, Montana State Constitution. Art. Sec. 1972 Mont. provides persons Const., that all have as an inalienable right opportunity pursuing the of life’s necessities. basic per- provides Const., Art. II. section no 1972 Mont. that against any person exercising civil son shall his discriminate political rights color, culture, race, sex, or of so- on account origin political religious condition, cial or or or ideas. higher Clearly subject the “at will” is to consti- statute this authority to it. Al- tutional and as such exists subservient by proscribed though this case not conduct the does involve right Constitution, I the to terminate do want to note that subject with to accordance not absolute but exercise principles. constitutional employment

This Court has contracts are sub- held ject dealing. to an faith and fair covenant repeal obligation and This is not rooted in statute cannot or provisions 39-2-503, Rather, MCA. amend the Section by obligation recognized the this Court must be reconciled easily I can be done. with the “at will” statute. think this employer, right statute, An “at will” has the under the legal obli- However, if the violates the terminate. gation employee fairly good faith, then a treat and the separate independent instituted action can be tort offending employer. injured employee against Dam- the ages, remedy. reinstatement, is the not attempt treading ice to construct

We are on thin as we protections employees. is an indication new There only opinion plaintiff majority terminated can that the clearly with “for conflicts cause.” Such a determination of em- “at ployment” must confuse the “term will” statute. We not employee right dealt with with of the to be obligation fairly owed of the faith. breach part employer may give action rise to a tort employment employee, will” not convert “at but does specific for a term. *11 reversing remanding trial, do not I but concur developing envy instructions the trial court the task have what we said.