*1 471 1981] v Mich Schwartz COMPANY SCHWARTZ MICHIGAN SUGAR 11, 1980, Lansing. at No. 50145. Submitted December Docket —De 20, 1981. appeal applied May for. Leave cided Michigan Sugar discharged by Com- H. was Bruce brought pany years employment. action for after of He an wrongful discharge, alleging was an contract that there age unless he reached to continue until cause, discharge discharged was in retaliation for that his performance and director for his effective as Michigan Occupational Safety and of the therefore in violation that, Act, long-term employee, by he could Health as a law and Court, Saginaw only. The Circuit be Borchard, J., granted summary judgment in favor of J. Fred defendant, plaintiff appeals. Held: and understandings promulgated and fostered 1. While rules and justify legitimate by employer may a claim to continued subjective expectancy part employment, on of an mere a Here, legitimate not create such a claim. will plaintiff’s employment, by of the revealed circumstances understanding deposition testimony, do not show a common continuing employment. mutual intent to form contract procedure any employee policy or Nor were there statements of discharge providing which would constitute contract only. would for cause plaintiff’s discharge claim in violation 2. that his Occupational Safety have been Act should and Health pursued provisions of Plaintiff’s review under the that act. [3, [1, [11] [4, [7, [13] Validity Employee’s arbitrary 2, 5, 6, 5] terminable at will. 2 Am 53 Am Jur Master and Servant § employement. ALR3d 226. 8,10]73 17 Am Jur 2 Am Jur 9] 53 Am Jur Am Jur 2d, 2d, References duration 2d, 2d, Jur Administrative Law §§ Administrative Contracts § 2d, 2d, 62 ALR3d dismissal as breach of Master Summary Judgment contract 4. Points in Headnotes and Servant 271. Law §§ purporting 60. 595-597. §§ 608. §§ 22, 34. 23. permanent contract pursue precludes judicial failure to remedies his administrative regarding review of his claim violation of the act. Appeals adopt 3. The Court of will not the doctrine that every good faith, Supreme must be where the *2 opportunity Court has had a recent to rule on such a claim and declined to do so. Affirmed. Bronson, P.J., portion majority dissented from that of the opinion regarding implied the existence of a contract in fact. plaintiffs allegations He would hold that that he had been led discharged
to believe that he would be but maliciously anyway the defendant him were sufficient as a matter of law to withstand a motion for sum- mary judgment. Judge Bronson would also hold that reason- jurors able could conclude from all the circumstances that implied employment, there was an contract for continued and summary judgment ground improper. Judge on that majority plaintiffs concurred with the on the other Bronson part, part, claims. He would reverse in affirm in and remand solely theory implied for trial on the of breach of an contract.
Opinion op the Court Summary — Judgment — 1. Motions and Orders Failure to State — a Claim Court Rules. summary judgment upon A motion for for failure to state a claim granted legal sufficiency which relief can be tests the of the plaintiffs pleadings; plaintiffs the test is whether the claim is clearly so unenforceable as a matter of law that no factual development (GCR possibly justify right recovery can a 117.2[1]). Summary Judgment — — op 2. Motions and Orders Genuine Issue —Fact Court Rules. summary judgment upon A motion for allegation based except damages genuine as to there is no issue of material fact sufficiency plaintiffs claim; tests the factual of the such a granted only impossible motion is to if it is for the supported claim deficiency to be at trial because of a which (GCR 1963, 117.2[3]). cannot be overcome — Employment 3. Contracts Contracts. permanent employment generally Contracts for are considered to hirings party; be indefinite terminable at the will of either however, providing a employee contract that an shall be dis- charged only for cause is enforceable. Sugar Co v Mich Employment Implied — — Contracts. Contracts 4. Contracts implied the intention is in fact where as to such A contract explicit by direct or words between is not manifested contract gathered by implication parties, but or deduction is to be parties, language things used or done from conduct of them, attending by pertinent circumstances trans- or other thus, understandings promulgated action; and fos- rules and legitimate by employer may justify claim an tered employment. continued Implied Employment — — 5. Contracts Contracts. Contracts part subjective expectancy on the of an that his A continuing employment was to is not sufficient to establish contract in fact for continued but for do show a common cause where the circumstances under- standing mutual intent to create such a contract. Employment — — 6. Master Servant Contracts Public Pol- icy. strong public A in contravention of a termination exception general policy wrongful to the rule that and is an *3 permanent employment contracts for are terminable at will. — — Remedies Reme- 7. Administrative Law Failure Pursue dies. proceed remedy, an administrative
A failure to prior seeking judicial grievance, review of his does make remedy inadequate. the administrative itself by Bronson, Partial P. J. Partial Concurrence Dissent Discharge Summary Judg- Wrongful — — 8. Master and Servant ment. plaintiff’s allegations
A led to believe that he that he had been employment just for cause but would be terminated from employer maliciously that his him without law, sufficient, motion are as a matter of to withstand a wrongful discharge summary judgment for in an action for employment. from Employment — — 9. Contracts Contracts Rule Construction. general permanent employment are rule that contracts for party, hirings, of either is not indefinite terminable at will employment enforceability a substantive limitation on merely contracts is a rule of construction. but [May- Opinion of the Court Judgment — Judgments Summary — Employment 10. Contracts Implied — Contracts. proper Summary judgment where a an action was not deposition wrongful discharge from offered for jurors testimony conclude that reasonable could from which plaintiff’s employ- implied agreement was an there discharge except cause. continued ment would be Discharge Policy. Wrongful — — Public 11. Master and Servant Any a clear termination from which contravenes policy wrongful. public — of Remedies. 12. Administrative Law Exhaustion litigants Generally, remedies before exhaust administrative must resorting legal in the courts of law. to a action — — Related Claims Limitation of Ac- 13. Law Administrative tions. seeking administrative review of his An Occupational Safety Michigan and Health Act and under the arising out of the who also has other claims same transaction raising subsequent should not be barred from those claims procedure completed if the administrative is not court action applicable of limitations has run and the until statute provided employer was with written notification of those claims. Mossner,
Cicinelli, Alexander, & P.C. Majoros Pearson), D. (by Eugene Mossner and William S. plaintiff. Hill, Lewis, Adams, & Tait Timo- Goodrich (by Wittlinger), D. thy for defendant. Bronson, P.J.,
Before: H. L. and J. Gillis and C. Bosman,* JJ. Gillis, Plaintiff, Schwartz,
J. H. J. H. Bruce *4 13, 1980, appeals from a order of the February Saginaw Circuit County granting Court defendant summary judgment. alleged Plaintiff had he that and from de- wrongfully unjustly discharged
* judge, sitting assignment. Appeals by Circuit on the Court v Mich Opinion of the Court 20, 1978, on employ September fendant’s after for working years. defendant for 28 broken complaint Plaintiffs can be down into First, alleges the three claims. existence of an to continue contract of until age absent Second, termination for cause. discharge claims that was in retalia- tion performance for his effective as company director and that defendant violated thereby Michigan Occupational Safety and Health Act 17.50(1) (MIOSHA), seq.; MCL 408.1001 et MSA et that, seq. Finally, plaintiff argues long-term as a by law he could employee, for just cause.
Neither nor subsequent defendant’s motion opinion specified and order whether the summary 117.2(1) judgment was based on GCR 117.2(3). Although defense counsel argued that plaintiff had failed to "state claim upon which relief granted”, can be the parties and court relied on various depositions and documents recorded Further, the court. defendant’s motion and accompanying memorandum argued there genuine was no issue of material fact it was entitled judgment as a matter of law. The lower court’s opinion concluded: "The court Michigan finds that under law that a or a contract of contract period, for an indefinite permanent employment, is a contract will, employment at and the may involved employer any time, cause, terminated any at or without cause. The court further if finds that termination is in on the retaliation for actions of the job, or for attempting job’, too to 'do cases are uniform employer still retains the right employee.” Out of each necessity, we consider *5 App Mich 471 106 476 op Opinion the Court 117.2(3). Cf., 117.2(1) 1963, and claims under GCR Muscat, 724, 728-729; 270 v App 84 Partrich Mich (1978). 506 NW2d GCR under judgment
A motion for summary 117.2(1) of the 1963, legal the sufficiency tests the which for pleadings, purposes plaintiffs Ber- true. Weckler v to motion are considered Comm, 7, 9; Mich 222 County rien Road App 55 (1974). test is whether appropriate 9 NW2d clearly claim is so unenforceable the no can development matter of law that factual v Crowther right recovery. possibly justify Manufacturing & App 42 Mich Ross Chemical (1972). 577 431; 202 NW2d A motion under GCR summary judgment 117.2(3) the of the sufficiency tests factual affidavits, The court is to consider plaintiff’s claim. documentary other evi- pleadings, depositions and v Clark Sanders parties. dence submitted Reñning 687, 692; 226 Corp, Oil 57 Mich (1975). give 695 benefit Thé court is NW2d party opposing doubt to the any reasonable if grant and only motion thereafter motion it supported at trial impossible is for the claim to be of a deficiency because which cannot be overcome. Kretschmer, Rizzo 363, 372; v 389 207 NW2d Mich (1973). 316 gener- permanent
Contracts are hirings considered to be terminable ally indefinite v Maxwell party. Lynas at the will of either (1937). Farms, 684, 687; Mich NW Nonetheless, the em- a contract providing en- shall ployee cause v & Blue Shield of forceable. Toussaint Blue Cross 579, 598, Michigan, 609-610; 292 NW2d rights Enforceable of this contractual may nature result from statements Opinion Court example, policy procedure. For and Id. in Tous- employer’s personnel policy saint, manual company policy was it to release stated ployees em- only”. Id., "for 597-598. More- inquired job over, security upon case as to
hiring told would re- long job. main as as he did Id. *6 his case, In the instant there were such no state- employee procedure. policy or ments of readily Plaintiff deposition in conceded his that he was employed age never told he would 65, the until of Furthér, absent termination for cause. he ad- superiors mitted that his never made statements that would have led him believe as much. He argues, however, the circumstances his require agree- that such a contractual implied ment in fact. requirements implied
The
a
in
contract
fact
were
in
Inc,
discussed
Erickson v Goodell Oil
(1970):
211-212;
Mich
Thus, conduct and other may circumstances establish an "com- unwritten providing equivalent mon law” a policy. understandings, pro- termination mulgated Rules and may jus- employer, and fostered tify legitimate employment. a claim to continued op Opinion Court v Sinder- Perry
Toussaint, 617-618, supra, quoting 2694; 33 L Ed mann, 408 US 593, 601-603; 92 S Ct ex- (1972). Nonetheless, subjective mere 2d 570 will not employee of an part pectancy on supra. Perry, claim. legitimate such a create re- testimony deposition of plaintiffs A review contract claim of an that his veals sub- on his own based was continued relationship with regarding jective expectancy the fact on his belief Plaintiff based company. family closeknit originally salaries, with high for its known operation, company, turnover. no virtually policy, leave sick no established it had though periods for extended employees sick paid usually pen- company’s on the Further, literature of time. would be employees all indicated that sion plan injuri- "was particular unless the eligible the com- interests to the detrimental ous or "foregone it was a concluded Plaintiff pany”. *7 compe- perform your job if you that conclusion the natu- company, asset and are an tently to be continue that will you is expectation ral company”. employed by a common do not evidence These circumstances that to contract understanding or mutual intent pen- continuing but for cause. be employment employ- condition does not manifest plan sion pension that bene- guarantee, ment but evidences through lost detrimental fits can be could long-term employee example, actions. For a if he took receiving pension a precluded be from con- firm. Plaintiff competing with a significance independent no ceded that he attached Likewise, company although the to the brochures. salaries, perceived that was low paid relatively Opinion of the Court employment. Plaintiff for continued a tradeoff as year a Mr. Rennert would that indicated each plaintiff’s years salary In some a review. conduct keep up rising salary increase would cost living years it not. In would the say and in other apologetic years, be Rennert would bad ready company off”, to "take insinu- that the ating plaintiff future” with had a "terrific plaintiff company. However, never viewed Ren- agreement representations as an contin- nert’s Rather, Rennert for cause. he saw as work but ued promised you Pollyanna type fellow "a going things better were to be tomorrow”. deposition testimony made it Plaintiff’s clear that he felt could cause policies pro- representations any not because mulgated, personal of his own belief but because doing competent work would that an a asset. as Plaintiff considered retained any company”. "a in almost Such convenience subjective to establish belief is insufficient a a although plaintiff’s Thus, in fact. contract complaint sufficiently pled of action on plaintiff’s theory, fact, for the claim basis this not the employment, objective his circumstances of personal law his own view of what the should but be. theory is that he was
Plaintiff’s second
dis-
performance
charged because of his effective
effect,
director. In
contends
regulations pre-
rigorous enforcement of MIOSHA
cipitated his dismissal.
agree that a termination in contravention of
We
exception
strong public
wrongful
policy is
and an
general
rule that such
con
*8
Cf.,
are
Trombetta v
tracts
terminable at will.
App
Detroit,
489;
T
265 NW2d
& I R
81 Mich
App
op
Opinion
the Court
Kroger Co,
Sventko v The
69 Mich 644;
"A shall an employee or in any against manner discriminate employee instituted a an employee because the complaint filed a or instituted or caused to be proceeding regulated under or by this act or has testified or testify is about to proceed- such a ing or because of by the exercise on behalf of right himself or herself or others of a afforded by this act.” It is apparent the Legislature intended protect employees, plaintiff, like allegedly dis- charged in an employer’s attempt to avoid the plaintiffs MIOSHA restrictions. If allegations are correct, his termination contravened the policy evidenced subsection.
Nonetheless, plaintiffs
action must fail since he
declined
pursue
the administrative
remedies
contained
prior
MIOSHA itself1
to resorting to
Judges
of the 74th Judicial Dist v
legal
this
action.
Bay County,
385 Mich
727-728;
Plaintiffs final theory for recovery is that law now prohibits discharge for malicious or retal- See MCL 408.1065(2)-(8); MSA 17.50(65)(2K8). *9 481 by Bronson, P.J. Partial Dissent is, employ- when an reasons, that that even
iatory any will terminable at ment contract Monge v Beebe Rubber in faith. must be 549, 130, 133; 316 551-552 114 NH A2d Michigan recently before This issue was Prussing Motors v General in Court Supreme Corp, where 403 Mich NW2d specific question. to rule on the Court declined doctrine a radical such a Because we consider Michigan law and from the common departure if it is to be judicially we that precedent, believe come from Su- change that should mandated therefore, We, lower court affirm the Court. preme complaint under plaintiff’s theory of dismissal well. Affirmed. Bosman, J.,
L.C. concurred. concurring (dissenting part, in P.J. Bronson, part). Febru- from a appeal by plaintiff This is an 1980, Circuit Saginaw County of the order ary favor summary judgment Court granting filed on complaint in a Plaintiff averred defendant. and un- 17, 1979, wrongfully that he April was after years defendant justly service, in the years capacity 11 of these director. opinion
Although specifying in its order rule it summary judgment which subsection based on, apparently was relying dismissal claim 1963, 117.2(1), to state a on GCR failure major- granted. can Like upon which relief however, must claims plaintiff’s I believe ity, 117.2(1) under be considered both GCR 117.2(3). three forth complaint basically
Plaintiff’s sets had an First, that he argues different theories. by Bronson, Partial Dissent P.J. implied contract with defendant that he would continue to employed age until 65 and that he could Second, be terminated for just cause only. plaintiff contends that his discharge was in retalia- tion performing job as safety director too well and that his termination violated the Michi- gan (hereinaf- Occupational and Health Safety Act MIOSHA), 17.50(1) ter seq.; 408.1001 et MCL MSA et seq. Third, plaintiff contends the common- law rule concerning the termination of long-term *10 employees has been in Michigan that, altered due solely to his substantial longevity with defen- dant, it precluded is from him discharging except just for cause. Each of these theories will be exam- ined seriatim in the portions three of this opinion.
I
In Lynas v
Farms,
Maxwell
684,
279
687;
Mich
273
(1937),
315
NW
Supreme
Court held:
permanent
"Contracts for
employment or for life
have been
construed
many
courts on
occasions.
general
In
it may be said that in the absence of distin-
guishing
provisions
features or
or a consideration in
addition to the
are
rendered,
services to be
such contracts
hirings,
indefinite
at
terminable
the will of either
party.”
Accord, Hernden v
Co,
Consumers Power
72 Mich
App 349, 356; 249
(1976),
NW2d 419
Milligan v
The Union Corp, 87
179,
Mich App
182; 274 NW2d
10 (1978), Rowe v Noren
Pattern &
Foundry
Mich
254,
App
258; 283
lv den
(1979),
NW2d 713
In the instant case, plaintiff alleged that he had v Mich by Bronson, P. J. Dissent Partial been led to that he believe would be terminated but only, that defendant maliciously him law, As matter of anyway. these allegations were sufficient to withstand a motion summary In Toussaint Blue Cross judgment. & Blue Michigan, Shield of 598-599; NW2d Supreme Court held that a provision in a contract providing that employee discharged except shall not be for cause Moreover, is legally enforceable. even absent ex- press agreement written or oral only cause, statements concerning company policy procedure which lead the to legiti- mately conclude he will be fired for cause constitute enforceable contractual provisions. The Court further stated that the rule from Lynas, above, quoted does not constitute a substantive limitation on the enforceability Id., contracts but merely rule of construction. 597. Toussaint also made it clear that Court own it testimony was
policy
to discharge
long
as he
did his
job
question.
sufficient
to create a jury
*11
Id.,
In
Schipani v Ford Motor
603.
102 Mich
App
Defendant’s
if
that
even
summary judgment
pursuant
not proper
were
to
1963, 117.2(1),
GCR
it was
appropri-
nevertheless
ate
117.2(3),
based on
genuine
GCR
no
issue
by Bronson, P.J.
Dissent
Partial
passing
motion
any
on a
In
fact.
as to
material
summary judgment
the
subsection
under this
rule,
pleadings, affidavits,
may
the
consider
we
documentary
any
evidence which
admissions, and
Kretschmer,
filed. Rizzo v
been
has
373;
While age employed him he until ever told would be long job well, did his he was led believe as he company’s major A factor actions. *12 v by Bronson, P.J. Partial Dissent belief was defendant’s distribution of informa- Moreover, concerning plans. tion retirement plain- tiffs superior many years, Rennert, Mr. made to leading statements him him to believe he would be until age if he year desired. Each Rennert perform would an salary annual review in respect to plaintiffs com- pensation. Rennert was "always apolo- somewhat getic” for the fact salary increase could not be more. he Consequently, would tell plaintiff perquisites various expect, could would emphasize good prospects for the company’s future, and implied that plaintiff "would be mov- ing up” with the company.
Based on this it testimony, is clear that no express agreement existed plaintiff between defendant would not prior age good except However, cause. noted previously, agreement an not may premised also be on an employer’s procedures and policy statements. Although case does not impress me as overwhelming based on his deposition did, testimony, nonetheless, it provide sufficient support factual for his contention that he age terminable before cause. Toussaint, 617-618, Court supra, quoted with approval following excerpt Perry from Sindermann, 408 US 601-603; 92 S Ct L Ed 2d 570 in rendering its decision: " 'A written contract explicit provi- with an tenure clearly sion is evidence understanding of a formal supports a teacher’s claim of entitlement to continued employment unless sufficient "cause” is Yet shown. absence explicit of such provision may contractual not always foreclose the possibility that a teacher has a "property” interest in re-employment. example, For law of most, all, contracts in if jurisdictions long *13 by Bronson, P.J. Partial Dissent though agreements, process by which employed a has Explicit "implied”. writing, may be formalized in
not contractual by other supplemented provisions may be promisor’s "the words agreements implied from surrounding circumstances.” of the light in the conduct And, promisor’s] words and acts meaning of [the "[t]he past.” the usage of by relating them to the is found " held his teacher, respondent, who has 'A like the to might able show years, be position for a number from other service —and from the circumstances this entitle- legitimate claim of facts —that he has a relevant ment there has found job tenure. Just as this Court industry or of a particular a law of a to be particular plant” "common a supplement collective-bar- may that "com- an unwritten agreement, may so there gaining that em- university certain particular in mon law” a This is of tenure. equivalent ployees shall have university, college like likely a in particularly College, explicit tenure that has no Junior Odessa faculty, but that of its system even for senior members system prac- such may have created nonetheless tice. " case, alleged exis- respondent has 'In understandings, promulgated and tence rules and legiti- officials, may justify by that fostered mate claim of entitlement state to continued ’ omitted.)” (Citations absent "sufficient cause.” of plain- disagree majority’s analysis
I with the that reason- I believe deposition testimony. tiffs conclude from all the surround- jurors able could circumstances that there was ing would be agreement plaintiffs that good cause. except for continued for testi- First, might find from jury prac- employer’s mony concerning the defendant’s tices, were even paid that employees instance time, periods while sick over extensive the "common law” for cause was dismissal Second, find might the jury defendant’s business. plans concerning retirement the information v Mich by Bronson, Partial Dissent P.J. circulated defendant evinced an intent except employees good Third, dismiss cause. might jury company’s agents find that plaintiff impliedly recognizing made statements to policy that he would remain with the unless cause. From all might plaintiff service, circumstances of his legitimate able to make out "a claim of entitle- job (V. Compare, supra ment to Clink, tenure”. J. dissenting). J., Brennan, assuming Even can make out a *14 case that the of terms his contract with defendant precludes discharge except for cause, it still sufficiently must be ascertained if has pled unjust. appar- that his dismissal was Plaintiff ently money concedes that defendant had lost during year discharge. However, his this is dispositive. pled complaint Plaintiff also in his deposition in stated his his that termination rigorous pro- safety was due to the nature of his gram. saving salary Plaintiff conceded that his was discharge. However, also a reason his for he denies actually that his termination was occasioned monetary genuine losses and a desire to save money by reducing personnel. Plaintiff further employee notes that he was the sole dismissed for purpose economizing. the ostensible In Tous- supra, Supreme saint, 622, the Court held that the jury permitted to ascertain the true reason for employee’s discharge. pled, On the facts as a jury hearing this case could conclude that defen- legitimate merely dant’s financial worries were a plaintiff’s firing convenient excuse to ascribe to improper and that the real reason was for some purpose weakening company’s safety such as program. such, As this cause should have been jury. submitted ato App 471 106 Mich by Bronson, P. J. Partial Dissent
II
plain
of whether
now turn to a consideration
I
doing
job
for
was
claim that he
tiffs
cogni
a legally
well” states
"too
director
dis
an employee’s
of action. Where
zable
strong public policy,
contravene
charge would
exception
to the
an
recognized
has
this Court
an
contracts
employment
rule that
general
Thus,
terminable
at will.
term are
indefinite
Co,
644; 245
App
Kroger
v
Sventko
(1976),
the dis
Court held
this
NW2d
filing
her
retaliation
charge
of an
incon
claim was
compensation
a lawful workers’
state and
public policy
sistent with
See, also, Trom
wrongful dismissal.
constituted
Detroit,
T & I R
betta
(1978)
den
NW2d alleging (complaint pollution for his refusal to alter terminated the state stated a cause reports required by
control granted). could which relief upon action public excep- policy Defendant contends contracts tion to the rule that applies to are terminable at will indefinite term (1) alleges where the two situations: *15 to force him to com- attempted his employer (2) the employee mit an unlawful act or where has claiming legally some benefit he is been fired disagree analysis I this entitled to claim. with a contravenes any hold that termination which is mandates public policy wrongful. MIOSHA clear working eye an regulation the of conditions with 17.50(65)(1) 408.1065(1); MCL MSA safety. toward provides: any or in person discharge employee an "A not shall against employee because
manner discriminate
Mich
489
v
by Bronson,
Partial Dissent
P. J.
complaint
filed
or instituted or caused to be
proceeding
regulated
instituted a
or
under or
by this act
has
testify
proceed-
testified or is about to
in such a
ing or
because
exercise
on
of himself
right
behalf
by
or herself or others of a
afforded
”
added.)
(Emphasis
this act.
opinion
In
my
emphasized
portion
provi
quoted
sion
above
protect
manifests
an intent
to
from
position
in the
employees
which
alleges
plaintiff
he finds
To
himself.
the extent
that plaintiff
prove
can
he was
rigor
fired
ous enforcement of MIOSHA regulations,
this pro
prohibits
vision
his dismissal.1
Defendant
further
argues that even if the above
interpretation
408.1065(1);
of MCL
MSA
17.50(65)(1) is correct, plaintiffs
action must
fail
because he has failed to exhaust his administrative
remedies. An administrative
procedure
review
is
17.50(65)(2)-
forth
408.1065(2)-(8);
set
in MCL
MSA
(8).
rule,
a general
As
litigants must exhaust ad
resorting
legal
ministrative
remedies before
to a
action in the courts of law. School Dist of the City
of Benton
Comm,
Harbor v State Tenure
some safety MIOSHA or other which he had previously sought disagreement to enforce. A mere over the manner safety regulation or status of company inside the is insufficient support theory. regulations safety Plaintiff must also show that formerly being which he enforced are not enforced or compliance regulations formerly is it complied with. generally recognized exceptions require two to the exhaustion ment are where a constitutional issue raised which the administra agency power adjudicate, Diggs tive has no State Board *16 [May- App 471 106 490 Mich by Bronson, P. J. Partial Dissent discharge wrongful of various theories Plaintiffs transaction or of one arise out which are claims of matter the suit subject is the occurrence 1963, 203.1. How thus, GCR and, must joined. requires relief claims ever, one of the Thus, suit. to the institution prior exhaustion unattrac is left two with believe plaintiff may his administrative exhausting tive alternatives — his holding other safety the claim remedies on risking the thereby possibility abeyance, in claims on these of limitations statute applicable the run, an immediate action bringing claims will exhausting his while in on his other claims court subject thereby on claim and remedies failed to argument that he has himself to the ing hold, however, I would claims. join compulsory wrong a claim of that, brings where an review under MI- for administrative ful arising out of the he has other claims OSHA and transaction, is provided if employer same claims, will not of these they written notification if court action subsequent be barred until completed not procedure administrative is C omp run.3 of limitations has applicable statute High State Dep’t Co v Oak Construction are, ways, 561, 565-566; 190 296 App 33 Mich NW2d (1971). plaintiff, period the time
Unfortunately complaint with the which he should have filed a claim has Department of Labor on MIOSHA However, passed. remedy now is an administrative to inadequate litigant fails simply because Directors, 508; & Embalmers Funeral 321 Mich 32 NW2d inadequate remedy so that and where available administrative City gesture, requiring v would be a futile Schwall exhaustion Dearborn, NW2d resolving problem is Another for the means of arising get right employer out of to have all claims waive purposes joined the same transaction trial. *17 by Bronson, P. J. Dissent Partial timely it Stetson, invoke in a fashion. Jamison v (ND 1978). Supp 48, NY, F 54-55 Thus, summary theory trial court’s this dismissal of correct on facts this case.
Ill
lastly
Plaintiff
contends we should hold that all
employment contracts terminable at will include
obligation
aas
covenant of the contract an
in the
employer
discharge employees
good
to
in
faith
improper
and that
it
to
retaliatory
malicious
reasons. At least one state
gone
Monge
has
this far. In
v Beebe Rubber
130, 133;
114 NH
316 A2d
551-552
Hampshire Supreme
New
Court stated:
contracts,
"In
employment
all
whether at will or for a
term,
definite
the employer’s
running
in
interest
his
business as
against
he sees fit must be balanced
employee
interest of
ment,
in maintaining
employ-
public’s
and the
maintaining
interest
in
a proper
(Citation omitted.)
balance between the two.
We hold
that a
by
termination
the employer of a contract of
employment at will which is
motivated
bad faith or
malice or based on retaliation is not in the best interest
of the
system
public
economic
good
or the
and consti-
(Citations
tutes a breach of
contract.
omitted.) Such a rule
affords the
a certain
stability
and does not interfere with the
employer’s normal
right
exercise
discharge,
of his
to
permit
which is necessary to
operate
him to
his busi-
efficiently
ness
profitably.”
and
Michigan Supreme
Court had
to
occasion
Monge
Prussing
consider
in
v General Motors
Corp,
It would for us to precedent Michigan and law common can be hold that an employee the rule is sound— I believe only. While long-term employees respect in particularly —if mandated, it will change judicially is to be Court. Supreme from our have come part, in I affirm part, reverse would proceed would The trial this cause remand. discharge vio plaintiff’s theory on solely *18 that he covenant an contractual implied lated cause, and this cove discharged for could nant breached.4 was that he was fired for defendant’s assertion 4 1 do not mean that enforcing totally rigorously is not actionable opinion provision also have to that this claim MIOSHA is irrelevant but my plaintiff prevail under in and of itself. For contractual first have to establish would just only. He would would be dismissed for that he is, dishcarge wrongful, not for establish that his exacting tending show that he was fired for his cause. Evidence requirements admissible to establish the to MIOSHA adherence evidentiary wrongful aspect use cause. This jury allowing to find for claim is different than MIOSHA solely to enforce it concludes that he was fired his efforts because regulations.