*1 It be that the may undisturbed. even present system leave the alone, with that would Legislature, squarely question if faced claims determined contested insurance exempt unemployment of the jurisdiction the Office by appeal tribunal from Legisla- belongs Administrative Law. But the decision to ture, not admit the present not to this statute does Court. majority to it in this given by construction has been to the OAL Act case—a construction which threatens undermine infancy. in its from and would hold majority
We dissent that, now seq., under the 52:14F-1 et claims terms of N.J.S.A. Unemployment appeal heard tribunal of Division of jurisdiction to Temporary Disability must transferred Law to be heard administra- of the Office Administrative judges.3 tive law CLIFFORD, SULLIVAN,
For affirmance—Justices and HANDLER—4. SCHREIBER AN and For reversal—Justices PASHM POLLOCK—2. COPYGRAPHICS, PLAINTIFF-RESPONDENT, LALLY, ANN JO DEFENDANT-APPELLANT. February April 1981—Decided Argued great give opportunity prepare to handle this 3In order OAL an load, opportunity provide with an increase in case the Commissioner legislation exempting appeal seek tribunals from OAL, delay for a reasonable we would effective date of such decision period. *2 argued Steven S. Radin and Edward Dreskin the cause for S. (Sills, Beck, Cummins, appellant Radin & Tischman and Edward Dreskin, Radin, Epstein S. M. attorneys; Barry Steven S. Daniel Louis
counsel; Radin and .Epstein, Steven S. Barry M. Grossman, briefs). on the (Farley for respondent the cause Farley, argued J. Jr.
Charles & Farley, attorneys). General, Bokar, the cause Attorney argued Deputy
Michael S. (John Degnan, J. Labor Skillman, attorney; Stephen Jersey, New Attorney General of counsel). Attorney Assistant General PER CURIAM. determination, 173
We affirm the Division’s N.J.Su- right law of action for per. that a has a common plaintiff alleged retaliatory firing wrongful discharge upon based *3 filing compensation claim and attributable to the of a workers’ of, that, to, a cause of action for judicial in addition or in lieu redress, statutory sanctions penal civil are available both there proceeding municipal in a court and admin- disorderly persons Industry, of Labor and istrative relief before dispute. a Our af- who has concurrent over such substantially expressed predicated upon firmance is reasons Appellate Division. Judge opinion Pressler’s Appellate of the particular In we endorse the conclusion cause that exists law of action civil Division there a common firing specifically a declared retaliatory redress for statutory and 39.2. The unlawful 34:15-39.1 under N.J.S.A. discharge its such a underscores illegality declaration should be and for which redress wrongful tortious character strongly in public founded available. Such a cause of action which, case, statutory prohibi- is reflected in policy in this Corp., Pharmaceutical themselves. Pierce Ortho tions See Moreover, penal and administrative (1980). N.J. 66-73 and 34:15-39.1 39.2 to provided by remedies are N.J.S.A. will be illegal practice clearly employment this form of rectify supplemental by recognition of alternative augmented common law action for redress.. A judicial right to secure civil wrongful discharge this context will statutory effectuate objectives complement legislative and and administrative policies which undergird the workers’ laws. The determination Division that the treat statutory ment of this retaliatory firing kind of is not preemptive of a civil right 170-172, of redress is sound. 173 N.J.Super. at
Additionally, although we concur in the observation of the appellate court that retaliatory “by discrimination an employer public constitutes both a private wrong, each of which is vindication,” entitled to id. at there are expressions in the opinion which might downgrade understood or minimize suitability administrative relief and to encourage resort to judicial remedies in preference to administrative solutions. Con- sequently, below, while we affirm the modify qualify the rationale offered the Appellate Division.
The court
apparently
impelled
below
felt
to find that
administrative relief provided by
34:15-39.1
N.J.S.A.
and 39.2 is
so,
strictly limited.
It
seemingly,
strengthen
did
its conclu-
sion that
there exists a viable common law cause of action for
civil redress which has not been superseded by
legislative
action, however,
treatment.
a civil cause of
Such
is firmly
unlawful,
public policy upon
anchored as a matter of
wrong-
ful,
proscribed
and tortious character of
conduct. Cf. Pierce
Corp., supra,
v. Ortho Pharmaceutical
We need not the of the pass upon soundness limited view of the expressed administrative remedies below. For the reasons below, 177-178, stated we conclude N.J.Super. at that statute, namely, enumerated in the specifically of relief forms for are wages, and lost employment to restoration enumeration, This how clearly Commissioner. available by as ever, necessarily suggested of strict limitation is not one N.J.Super. pertinent at 180. The Division. 173 Appellate reads, part the statute herein law,
As an or otherwise alternative to other sanctions provided by any exceeding not Commissioner of Labor and Industry may impose penalty added) (emphasis act. 34:15-39.2] violation of this [N.J.S.A. $1,000.00 any potentially expansive more possible language It is that this as, or, by limited conversely, intrinsically suggested than not as and, open question remains an Appellate Division. This the outer present not determine reaches of purposes, need Commissioner's this power under statute.1 judicial also the belief that Judge expressed Pressler might course of action because could be preferable “circuity” be securing public private avoided of both the and “[vindication N.J.Super. single proceeding.” interest at 181. This [a] suggest can be relief is pursuit taken to of administrative generally preference should be disfavored and that extended judicial reject implication. course. We this unlawful, (cid:127) is concurrent. The retaliatory discharge redress an choose, may election that of the She at her com- plaintiff. discretion, plete route, arguably which though an administrative law, not may as as a action in court of be less complete civil involved, expensive. Moreover, consuming, pointed time and as Division, id. Legislature out at itself recognized sensitivity of the Com- expertise, experience aggrieved discharged employee missioner in these matters. An 1We note the recent Bill This Assembly proposed introduction legislation nature and administrative delineates explicitly scope proceeding brought be Labor and before the Commissioner of may envisage firing. course, not here any for a Of we do retaliatory legisla such construction accorded particular proposed application tion.
673 might well believe these important considerations to be assessing path which remedial to follow.
With these observations and for all of the reasons expressed, we affirm below.
SCHREIBER, J., dissenting. This case has its 18, roots in an accident on March 1975 in plaintiff Jo Ann Lally injured was working while Copygraphics defendant at plant. its She returned to work March 31 and discharged April 11, was after having been told her medical bills would not paid.
Plaintiff filed a compensation workers’ petition on the day her discharge. Subsequently, she received a compensation award of permanent $1870 disability and for tempo- $114.29 rary disability. 22, April
On plaintiff submitted a verified complaint to charging Division on Rights Civil that her employment had been “terminated because of her sex.” The Division’sinvestiga- tion disclosed that her notice separation recited that the reason for her discharge was: careless work habits which caused her to have Very numerous accidents. This danger was a dangerous working fellow and created a employees potentially
environment. After submitting plaintiff, this information to the Division case, closed the no pointing out that it had over discharges filing “because of the of a< case.” This matter was concluded on July July On 1975 the Equal federal Employment Opportunity reject- Commissionalso ed the sex plaintiff discrimination claim which had filed with it.
In August plaintiff Superior instituted suit in the Court charging a violation of seeking N.J.S.A. 34:15-39.1 and compen- satory punitive damages. hearing After defendant’s motion for dismissal of the complaint, the trial court ordered that the matter be transferred to the Division of Compensation Workers’ action, for appropriate if “damages, any, limited to those [to be] damages prescribed under 34:15-39.1.” N.J.S.A. *6 following considera- Industry, of and
The Commissioner Labor Division tion of had been transferred complaint which impose penalty investigator’s and his declined report, sought 34:15-39.2. thereupon N.J.S.A. Plaintiff under permitted Superior of Court order of review Division Appellate in the Industry of Labor and decision. transfer and the Commissioner reversed, opinion a divided The Division in a common law that could maintain majority holding plaintiff punitive damages action and and that compensatory to order authority of Labor and had the wages. for loss of 173 N.J.Su- reinstatement and 162, 169, dissenting opinion held that per. (1980). 178 The with an Legislature judicial cause of action had created of lost job reimbursement remedy exclusive restoration and subjected to an wages who had been employee in favor of an also that the illegal found reprisal. Id. at 182-186. dissent authority to order that Commissioner had not vested with been relief. Id. at 186-188. (1980), 84 Corp.,
Until v. N.J. 58 Pierce Ortho Pharmaceutical proposition employer “an adhered to common law cause, with or discharge, had unbridled without restrictions,” ... an in the of contractual employee absence N.J., 20, English Dentistry and 73 N.J. College Medicine limitations, v. No. (1977), statutory 23 Nicoletta District Jersey 145, (1978), Comm’n, Water 150 or Supply 77 N.J. constitutional Sindermann, 408 safeguards, Perry v. 92 33 U.S. S.Ct. Pierce, (1972). L.Ed.2d In we adopted principle that “an employee wrongful discharge has a cause of action for when the discharge contrary public clear mandate of policy.” to a N.J. at could public policy 72. Declarations of such be found in legislation, regulations, judicial rules and administrative and wrongfully decisions. Id. at 72. Pierce also held that a dis- an charged employee maintain in contract or in tort could action damages might compensatory punitive and be recov- ered. Id. at 72. damages, sought punitive,
Plaintiff compensatory because she discharged was violation of This N.J.S.A. 34:15-39.1. statute condemning enunciates a dis- policy reprisals, either charge discrimination, or against have or employees who claimed attempted compensation. to claim workers’ The policy having been fixed and Legislature, announced the Pierce princi- ple supports the proposition employee a cause of has action discharged filing when asserting retaliation for right file petition a claim under the Workers’ Compensation Act.1
However, there still be must considered the nature extent of that cause of In to promulgating policy action. addition *7 against reprisals, remedy, N.J.S.A. 34:15-39.1 also a provides namely, to the job compensation wages. restoration for lost Legislature, having established standard of conduct follow, which employers must determined the civil relief availa ble employees Legisla when that standard is violated. The ture promote has fixed that relief to purpose statute. There nothing legislative history indicating is in the a legislative intent that recovery judicially cognizable a tort be expanded beyond recovery wages of loss of reinstatement. The public policy enunciated section did not before 39.1 exist enactment of English College the statute. of Dentistry In v. Medicine and N.J., 20, of 73 (1977), N.J. 23 we held that had employer cause,” discharge, “unbridled with or without in the contractual, statutory absence of or constitutional restraints. Jersey Our in New research discloses no decision elsewhere before enactment section in 1966 which recognized of 39.1 a arising common law cause action out of a discharge of because reprisal filing workers’ claim. The first opinion such a cause of action was acknowledging Frampton v. 249, Central Indiana 260 Ind. 297 Company, Gas N.E.2d 425 (1973), rejected many jurisdictions. a decision which has been 1In that, Pierce held even in the absence of a specific remedy at statute, an would have a cause of action. 84 N.J. 68. employee valid
676
1977);
(7
Co.,
With to the in the Division when target dissenting opinion in his *8 he states that the statute does not authorize the Commissioner pay. and back of Labor and to order reinstatement language support and the used organization The of the statute position. The act reads as follows: statute, if a 2Even common law action had existed before enactment employee’s appear have limited the remedies to the effect of the act would to Appellate Division’s rationale that those
those stated in the statute. The justify inadequate of its for are does not substitution remedies Legislature. that of agent discharge be It shall unlawful for or his to any authorized employer duly against or in other manner discriminate an as to his any employee employment because such claimed or has to claim workmen’s attempted compensa- employee tion benefits from such or because he has or is to testified, about employer, proceeding in under the to act is which this a any chapter testify, supplement. agent For violation or fine of this shall be a act, any employer punished by not than less nor more than or for than not more $1,000.00 imprisonment $100.00 against or both. to so discriminated shall be restored his days Any employee wages and shall his for be loss of compensated by employment employer any arising out of such if to discrimination; such shall cease provided, employee the duties of his he not be to such shall entitled qualified perform employment restoration and compensation. [NJ.S.A. 34:15-39.1] As an alternative herein other sanctions or otherwise any law, provided exceeding the Commissioner of Labor and a not Industry may impose penalty violation of this act. He in a $1,000.00 manner any may proceed summary for the of such the use of State in court of recovery penalty, any jurisdiction. [N.J.S.A. 34:15-39.2] competent vest, Section 39.1 or expressly impliedly, any does not authori- ty in or to order reinstatement back Nor pay. Commissioner is any there language delegating any section 39.1 additional powers to the Commissioner. 39.1 refers to two reme- Section dies. The first is or or No punitive, imprisonment fine both. one jurisdiction is disputes proceeding of such in a court having jurisdiction. criminal second The refers the civil claim employee, plus pay. reinstatement reimbursement for lost then authority Commissioner’s set forth in a separate section, 39.2, any other alternative sanctions herein “[a]s provided penalty otherwise law.” It is clear that 39.2, may viz., impose under section enforce- ment of a civil penalty by summary proceeding, separate apart provisions from the ten of section 39.1. Indeed for over years following the statute’s enactment in 1966 the Commission- er assumed he had no under section 39.1. If Legislature had intended that the Commissioner have such au- thority, language employed 39.2 have section would appeared section 39.1. provision No vests over actions for reinstatement pay and lost in the Division of Work- ers’ Compensation. (cloaking Cf. N.J.S.A. 34:15-49 the Division with “original jurisdiction of all claims for workers’ compensa- benefits”). tion *9 in the has been introduced note that there interesting to
It is provides section 39.1 amending Legislature a bill Compensation of Workers’ the Division proceedings before action, including, but not take “affirmative authorizes it to with employees, upgrading hiring, reinstatement or limited to (1980). When the Bill 403 Assembly pay.” or without back Division, in the it to create such Legislature desires in an unmistakable purpose accomplish knows how to fashion. of Labor
I would affirm the Superior trial to the and remand the matter opinion. Court, Division, with this Law in accordance PASHMAN, SULLIVAN, CLIF- For affirmance —.Justices FORD, HANDLER and POLLOCK —5.
Dissenting— Justice SCHREIBER —1.