The appellant, Hoffman-La Roche, Inc. ("Roche"), appeals from a judgment of the Etowah Circuit Court entered upon jury verdicts against it on both a count of breach of an employment contract and a count of fraud. The action had been filed by a former employee, Hugh Campbell. The jury assessed damages at $150,000. The determinative issue on appeal is whether certain provisions contained in an employee handbook issued by Roche modified the employment relationship which existed between Roche and Campbell so as to make the relationship terminable only by compliance with those provisions.
Campbell was hired by Roche as a pharmaceutical sales representative in October 1974. Prior to his acceptance of the position, he had engaged in several discussions with E.P. Delk, a division sales manager of Roche. During these discussions, he was informed of various benefits which Roche made available to its employees. Delk also discussed with Campbell the general responsibilities of a Roche salesman and a potential conflict of interest that existed because of Campbell's part ownership of a drug store. He was given a pre-employment physical examination by a physician of Roche's choosing and, even though he had earlier been involved in an accident which had caused serious injury to his left leg, was found physically able to perform the job.
Subsequently, Campbell and Roche entered into a written agreement, which was characterized by Delk during his testimony as "an agreement to employ Mr. Campbell for certain compensation and certain conditions
At the time of his hiring, Campbell was also given a copy of an employee handbook entitled "Roche Employee Handbook." He was instructed to become familiar with the provisions of this handbook. During his employment at Roche, this handbook was "updated" on several occasions.
Campbell's position with Roche required him to call upon physicians, drug stores, and hospitals in a specific territory in northeast Alabama. During his first year with Roche, he received various sales awards for outstanding performance. Among these awards was the highest award one could attain at Roche.
In 1978, however, Campbell began to experience health problems. Over the next several years, he received treatment at various hospitals, and various diagnoses were made before, ultimately, in April 1980, a correct diagnosis was made at the University of Alabama at Birmingham Hospital Infectious Disease Center. Surgery was performed as part of the treatment for his illness. As a result of this lingering illness, caused by an infectious organism that had attacked the bone in his left leg, Campbell's work performance slipped.
On September 19, 1980, he was given an "unacceptable" performance rating by his supervisor. He was told that if his performance did not improve "in three months," he would be terminated. It is not clear from the record whether this three-month period was to start immediately (as of September 19, 1980) or at some later date. What is clear, however, is that at this time Campbell was still recuperating from his surgery and was in a full leg cast. In early January 1981, he was placed on "probation." Then, on January 31, 1981, he was informed by a telegram that he had been terminated. The telegram stated no reason for this termination. However, Roche's contention, as set out in the pre-trial order, was that the termination was based upon Campbell's deteriorating job performance. The testimony at trial supported this contention. No other reason was given at trial.
Campbell testified that, in late 1978, he had talked with his supervisor, Delk, about his deteriorating health when he inquired as to whether he should take sick leave or keep on working. Delk advised him to "keep working." Campbell testified that, throughout the time of his illness, he abided by Delk's instructions not to take sick leave. Instead, he would simply notify Delk and the company when he was sick, and he worked when he could. He used a form provided by the company to report these "sick" days. He testified that the use of this form was the "customary and accepted" method used to report sick days during his time with the company.
Delk's testimony differed sharply from that of Campbell. Delk testified that, although Campbell had indicated earlier that he was "not 100%," he never informed him that his problems were affecting the performance of his work. He testified that Campbell never requested sick leave.
It was stipulated to by the parties that Roche became a self-insurer of the benefits program it made available to its employees. It was Campbell's argument at trial that Roche had dismissed him so as to avoid paying him those benefits he had been promised through the issuance of an employee handbook.
On appeal from the judgment entered on the jury verdict against it, Roche argues that the employment agreement signed by Campbell did not set out a definite duration of employment and, therefore, that Campbell was an employee at will and could have been terminated for any reason or, even, for no reason at all. Campbell, on the other hand, argues that the jury's verdict is correct because Roche limited its right to terminate him by its issuance of an employee handbook containing certain provisions
By now, the rule is well settled in Alabama that an employee contract at will may be terminated by either party with or without cause or justification. See, e.g., Meeks v. Opp Cotton Mills, Inc., 459 So.2d 814 (Ala.1984); Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977). This means a good reason, a wrong reason, or no reason. Hinrichs, supra.
The cases reveal that three elements must be shown to establish that an employment contract is one other than one terminable at will: (1) that there was a clear and unequivocal offer of lifetime employment or employment of definite duration, Bates v. Jim Walter Resources, Inc., 418 So.2d 903 (Ala.1982); (2) that the hiring agent had authority to bind the principal to a permanent employment contract, Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939); and (3) that the employee provided substantial consideration for the contract separate from the services to be rendered, United Security Life Ins. Co. v. Gregory, 281 Ala. 264, 201 So.2d 853 (1967). This Court has repeatedly refused to modify this doctrine even so much as to recognize a so-called public policy exception to its application. Thus, we have refused to recognize an exception where an employee had been dismissed for refusing to commit a criminal act, see, e.g., Jones v. Ethridge, 497 So.2d 1107 (Ala.1986); Williams v. Killough, 474 So.2d 680 (Ala. 1985), or where an employee had been dismissed because he filed a workmen's compensation claim, see Meeks v. Opp Cotton Mills, Inc., supra, or where an employee had been dismissed because he responded to a subpoena for jury duty, see Bender Ship Repair, Inc. v. Stevens, 379 So.2d 594 (Ala.1980).
The Court continues to adhere to the above-stated principles today. Indeed, in this case, we are not asked to abrogate the employment-at-will doctrine. We are asked only to determine what effect certain provisions set out in an employee handbook had upon the employer's right to exercise its powers to terminate the employment relationship at will.
The appellant argues that this Court has already addressed this question in White v. Chelsea Industries, Inc., 425 So.2d 1090 (Ala.1983). In that case, it was said:
425 So.2d at 1090.
The statements made in White are limited to the facts of that case, and are not to be taken as standing for the proposition that a handbook may never rise to the level of a contract. Indeed, in White, no determination on the effect of the handbook was made until after the contents of the handbook were "reviewed." Such a review would not have been necessary if the issuance of a handbook could not, under any circumstances, have created a contractual agreement between the employer and the
In Duff v. American Cast Iron Pipe Co., 362 So.2d 886 (Ala.1978), this Court found that the violation of a rule contained in an employee handbook was a "contractual precondition to discharge." 362 So.2d at 888. Similarly, in Green v. American Cast Iron Pipe Co., 446 So.2d 16 (Ala.1984), rules contained in an employee handbook were given contractual significance. See also Smith v. American Cast Iron Pipe Co., 370 So.2d 283 (Ala.1979).
It is argued that these cases do not actually stand for the proposition that a communication made by the issuance of an employee handbook can actually be given contractual status because all of these cases dealt with the unique relationship that exists between American Cast Iron Pipe Company ("ACIPCO") and its employees. In Farlow v. Adams, 474 So.2d 53, 56 (Ala.1985), it was said:
While we acknowledge that the relationship between ACIPCO and its employees was unique and that, indeed, the relationship was not governed "exclusively" by the principles of either contracts or trusts, this does not detract from the fact that, in those cases, the provisions of the handbooks were given contractual force.
Further, we note that the "ACIPCO cases" are not the only cases in which this Court has given contractual significance to the language used in an employee handbook. In Davis v. Marshall, 404 So.2d 642, 644-45 (Ala.1981), for example, this Court reversed a summary judgment that had been granted against the plaintiff and said:
Indeed, our examination of a number of cases from other jurisdictions that have considered the issue reveals that an increasing number of jurisdictions have given contractual effect to language contained in handbooks. See, e.g., Vinyard v. King, 728 F.2d 428 (10th Cir.1984); Greene v. Howard University, 412 F.2d 1128 (D.C. Cir.1969); Leikvold v. Valley View Community Hospital, 141 Ariz. 544, 688 P.2d 170 (1984) (en banc); Pugh v. See's Candies, Inc., 116 Cal.App.3d 311, 171 Cal.Rptr. 917 (1981); Salimi v. Farmers Ins. Group, 684 P.2d 264 (Colo.Ct.App.1984); Piper v. Board of Trustees, 99 Ill.App.3d 752, 55 Ill.Dec. 287, 426 N.E.2d 262 (1981); Dahl v. Brunswick Corp., 277 Md. 471, 356 A.2d 221 (1976); Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980); Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983); Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 668 P.2d 261 (1983); Forrester v. Parker, 93 N.M. 781, 606 P.2d 191 (1980); Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982); Langdon v. Saga Corp., 569 P.2d 524 (Okla.Ct. App.1976); Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984) (en banc).
These courts have recognized, as we do, that all employee handbooks are not simply "`corporate illusion[s], "full of sound ... signifying nothing."'" Weiner v. McGraw-Hill, Inc., 83 A.D.2d 810, at 810-11, 442 N.Y.S.2d 11, 11 (1981), Kupferman,
In Toussaint, the Supreme Court of Michigan upheld a jury verdict for a plaintiff, an employee at will, who claimed he had been discharged without just cause in violation of his employer's personnel manual, which provided that employees would be terminated for just cause only, pursuant to certain procedures. 408 Mich. at 595, 597-98, 292 N.W.2d 883-84. In doing so, it held that:
408 Mich. at 598, 292 N.W.2d at 885. It also held that:
408 Mich. at 614-15, 292 N.W.2d at 892.
The Toussaint court's theory, basically, is one of estoppel, invoking the idea of reliance—although the rationale also recognizes that both parties, the employer and the employee, benefit from the establishment of employment policies:
408 Mich. at 614-15, 292 N.W.2d at 892. (Footnote omitted.)
It was argued to the Toussaint court that "mutuality of obligation" was lacking in such a situation because, although the employer would be obligated to continue the relationship until the prescribed conditions had been met, the employee would not be so obligated. However, the court rejected this argument:
"The enforceability of a contract depends, however, on consideration and not mutuality of obligation. The proper inquiry is whether the employee has given
408 Mich. at 600, 292 N.W.2d at 885. (Footnote omitted.)
In Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983), the Supreme Court of Minnesota was faced with the issue of whether a handbook could become a part of an existing employment-at-will contract.
The Minnesota court approached the handbook problem as follows:
333 N.W.2d 625-27. (Footnote omitted.)
We find the unilateral contract analysis set out in Pine River to be both consistent with sound traditional contract principles and in accord with existing Alabama caselaw.
220 Ala. at 212, 124 So. at 422.
The concept of mutuality of contract was discussed as follows in Hill v. Rice, 259 Ala. 587, 67 So.2d 789 (1953).
259 Ala. at 594-95, 67 So.2d at 796-97. (Emphasis added.) Accord, Sherrill v. Alabama Appliance Co., 240 Ala. 46, 197 So. 1 (1940) ("if there is other consideration, there need not be" mutuality of obligation); Miller v. Thompson, 229 Ala. 267, 156 So. 773 (1934) ("performance supplies the element of mutuality necessary as a consideration to support the obligation" in a unilateral contract situation).
Just such an analysis was applied in Henderson Land & Lumber Co. v. Barber, 17 Ala.App. 337, 85 So. 35 (1920) to uphold the finding of an enforceable contract, though unilateral in nature, between an employer and employee when the employer promised to pay the employee a 5 percent
17 Ala.App. at 338, 85 So. at 35-36.
The foregoing considered, we see no reason why a policy contained in an employee manual issued to an employee cannot become a binding promise once it is accepted by the employee through his continuing to work when he is not required to do so. Such a performance clearly provides any consideration necessary to the contract.
Of course, to become a binding promise, the language used in the handbook must be specific enough to constitute an actual offer rather than a mere general statement of policy. See Pine River, supra, at 626. However, whether a proposal is meant to be an offer for a unilateral contract is determined by the outward manifestations of the parties, rather than by their uncommunicated beliefs. See Mayo v. Andress, 373 So.2d 620 (Ala.1979). It is axiomatic that an offer must be communicated before it may be accepted. See generally, S. Williston & G. Thompson, Selections from Williston's Treatise on the Law of Contracts, § 33, at 37 (Rev. ed. 1938). Indeed, if the employer does not wish the policies contained in an employee handbook to be construed as an offer for a unilateral contract, he is free to so state in the handbook. Thus, this Court has refused to hold the provisions of a handbook enforceable against an employer where the handbook at issue expressly stated the following:
McClusky v. Unicare Health Facility, Inc., 484 So.2d 398, 400 (Ala.1986).
We do not find the indefinite nature of the time period for performance to be a bar to enforcement of a unilateral contract. On this issue, we agree with the reasoning found in Pine River:
333 N.W.2d at 628. Indeed, the rules set out above regarding the enforcement of a unilateral contract do not require that any definite time period for performance have been set or agreed to. Instead, the rule is stated that the agreement is enforceable to the extent that it has been performed. See, e.g., Louis Werner Sawmill Co., supra.
Neither do we find that the possibility of enforcement of those specific policies set out in an employee handbook creates an unduly inflexible environment for the issuance of employment guidelines, rules, policies, or benefits. As explained by the Oklahoma Court of Appeals in Langdon v. Saga Corp., 569 P.2d 524, 527-28 (Okla.Ct. App.1976), an employer is bound by the stated policies only to the extent that the benefits have accrued or performance has been made by the employee:
See also Pine River, 333 N.W.2d at 627 ("Unilateral contract modification ... may be a repetitive process. Language in the handbook itself may reserve discretion to the employer in certain matters or reserve the right to amend or modify the handbook provisions."); Toussaint, 408 Mich. at 619, 292 N.W.2d at 894-95 ("Employers can make known to their employees that personnel policies are subject to unilateral changes by the employer"). In this sense, the unilateral offer made by the employer may be characterized, as it was by one commentator, as follows: "I promise I will not dismiss you without cause (or without exhausting specified procedures) unless I change this policy before you are discharged." H. Perritt, Employee Dismissal Law and Practice, 150 (1984).
In summary, we find that the language contained in a handbook can be sufficient to constitute an offer to create a binding unilateral contract. The existence of such a contract is determined by applying the following analysis to the facts of each case: First, the language contained in the handbook must be examined to see if it is specific enough to constitute an offer. Second, the offer must have been communicated to the employee by issuance of the handbook, or otherwise. Third, the employee must have accepted the offer by retaining employment after he has become generally aware of the offer. His actual performance supplies the necessary consideration.
Applying the above analysis to the facts of the present case, we find that, as a matter of law, there existed a unilateral contract between Campbell and Roche.
The handbook at issue contains, in pertinent part, the following language:
"Because personnel and pay policies and company practices are designed by people for people, they change from time to time. Your handbook will reflect this, it will be updated periodically so that the information is always as current as possible. When a new page is issued, simply use the date and section codes to locate
In a section entitled "termination of employment-permanent employees" is the following:
In this same section, under the title "types of termination" is the following:
The language used in this handbook is clear enough that an employee reading it could reasonably believe that, as long as he worked within the guidelines set out in the handbook,
It is not disputed that Campbell continued to work after the handbook had been issued.
Campbell argues that Roche breached this contract by discharging him for unsatisfactory performance of his job when (1) he was too ill to satisfactorily perform the job and (2) he had been instructed by his supervisor not to take advantage of the sick leave benefits which were available to him as a Roche employee.
Campbell expresses this argument as Roche's having violated its obligation to perform the contract in "good faith and fair dealing." Roche, on the other hand, argues that it was not required to act with good faith. More specifically, it argues that the trial court erred in giving the following charge to the jury:
"I further charge the jury that the law of this state writes into every contract,
Specifically, Roche argues that the effect of this instruction was to "submit to the jury a claim for bad faith on plaintiff's termination of employment."
We find no error in the judge's charge and agree with Campbell's argument that Roche's discharge of him, under the circumstances of the present case as they could have been found by the jury, constitutes a breach of contract.
Alabama recognizes the general rule that "every contract does imply [an obligation of] good faith and fair dealing." Kennedy Electric Co. v. Moore-Handley, Inc., 437 So.2d 76 (Ala.1983); see also Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala. 1986). This obligation is described in Corbin on Contracts, § 654A(A) (Kaufman supp.1984) (hereinafter cited as "Corbin § ___") as simply "the obligation to preserve the spirit of the bargain rather than the form," and that "[i]t is moreover a group of specific rules which evolved to insure that the basic purpose of contract law is carried out, the protection of reasonable expectations of parties induced by promise." Apparently, a majority of jurisdictions now recognize this obligation. See Corbin § 654A(B).
One facet of this obligation of good faith is explained in Corbin § 654E(A):
Roche violated this obligation when it discharged Campbell for unsatisfactory performance even though it was aware of his physical inability to perform satisfactorily.
We note that this obligation of "good faith" arises as part of the contract. Its breach does not give rise to an action in tort. Harrell, supra; Kennedy, supra. On the facts of the present case, it may simply be expressed as a finding that there necessarily exists an implied or constructive condition precedent to the firing of Campbell for unsatisfactory performance, i.e., that he be physically able to satisfactorily perform. We made a similar determination in Duff v. American Cast Iron Pipe Co., supra.
The employee sued for reinstatement and back pay. The evidence showed that, at the time the 14-day period had ended, the employee was mentally incapable of complying with the rule. We reversed a judgment for the employer, reasoning as follows:
362 So.2d at 888-89.
Even if such an obligation of good faith and fair dealing was not necessarily implied by law, we would find such an obligation, on Roche's part, to exist in the present case. As is aptly pointed out by counsel for Campbell, the language of the handbook expressly stated that the policies and practices of Roche would be "applied fairly." Given this language, it cannot be said that it was within the reasonable expectations of the parties that Campbell could be discharged for unsatisfactory performance when he was not physically capable of satisfactorily performing.
Roche next argues that the trial court committed reversible error when instructing the jury as to the damages assessable in this case. Our review of the record indicates, however, that the plaintiff's testimony of actual damages, as computed by an expert witness, placed this damages as high as $156,839. The defendant offered no evidence as to the nature and extent of the damages. The jury returned a verdict assessing plaintiff's damages at $150,000, and there has been no complaint that such an award was excessive. Therefore, even if it were conceded that the court erred in charging the jury on damages, and it is not so conceded, no injury resulted to the defendant therefrom. Therefore, there can be no reversal on that basis. See North British & Mercantile Ins. Co. v. Sciandra, 256 Ala. 409, 54 So.2d 764 (1951); Lehigh Portland Cement Co. v. Higginbotham, 232 Ala. 235, 167 So. 259 (1936); Corry v. Sylvia Y Cia, 192 Ala. 550, 68 So. 891 (1915).
All other issues having been either addressed in or intentionally pretermitted in the foregoing discussion, the judgment of the trial court is affirmed.
JONES, ALMON, SHORES and ADAMS, JJ., concur.
MADDOX and HOUSTON, JJ., dissent.
The majority attempts to distinguish this Court's decision in White v. Chelsea Industries, Inc., 425 So.2d 1090 (Ala.1983), decided just over four years ago, and fails to discuss how this case differs from Cunningham v. Etowah Quality of Life Council, 484 So.2d 1075 (Ala.1986), decided last year, in which this Court held that an employee manual containing provisions similar to those in the handbook here did not establish a definite period of employment. When I compare the terms of the employee handbook in this case with the terms of the employee handbook in the White case, and the terms of the employee manual in Cunningham, I cannot make a distinction, and because the majority cites decisions of this Court involving American Cast Iron Pipe Company, an admittedly unique industrial organization where the employees have a part in controlling the company, I can only conclude that this Court has overruled the principle of law set out in the White and Cunningham cases. Because White was based, in part, upon this Court's case of Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977), I can only conclude that the Court has now adopted a principle of law that an employment terminable at will can be changed by the unilateral action of the employer in issuing an employee handbook or manual.
Employees in Alabama bear a heavy burden of proof to establish more than an at-will employment relationship. The law rightly considers lifetime or permanent employment contracts to be extraordinary and not lightly to be implied. Alabama Mills, Inc. v. Smith, 237 Ala. 296, 301, 186 So. 699, 704 (1939). Three elements must be shown to establish a permanent or lifetime employment contract: (1) that there was a clear and unequivocal offer of lifetime employment or employment of definite duration, Bates v. Jim Walter Resources, Inc., 418 So.2d 903 (Ala.1982); (2) that the hiring agent had actual authority to bind the principal to a permanent employment contract, Alabama Mills, supra, 237 Ala. at 300-01, 186 So. at 703; and (3) that the employee provided substantial consideration separate from the services to be rendered, United Security Life Ins. Co. v. Gregory, 281 Ala. 264, 201 So.2d 853 (1967). Failure to prove one of these elements would necessitate a directed verdict for the employer, because the employee would be, by law, an employee at-will and would be, therefore, terminable for any reason, or for no reason at all. Reich v. Holiday Inn, 454 So.2d 982 (Ala. 1984); Hinrichs v. Tranquilaire Hosp., 352 So.2d 1130 (Ala.1977).
The language relied on by Campbell as establishing a definite term of employment reads as follows: "in consideration of the employment or continued employment of employee by Roche and of salary, wages or other consideration to be paid by Roche to employee, it is hereby agreed...." (Emphasis added.) Campbell asserts that this language, under the Alabama Mills decision, means that the employment relationship would continue as long as he desired to work and performed his work satisfactorily and the employer had work for him to perform. I fail to find any basis for that conclusion in the Alabama Mills decision. Rather than looking to a single word, I look at the agreement itself. A fair reading of it leads me to conclude that it did not establish a permanent employment relationship between the parties. The agreement is what it purports to be: a nondisclosure and nonconflicts agreement. Campbell, in his brief, states that Roche required all of its employees to execute this agreement, but this cannot change the nature of the agreement; clearly, it is not an agreement that would create a contract of employment other than one terminable at will. Further, it is undisputed that Campbell was never told he could not be terminated; he acknowledged that Delk could dismiss him. He had never discussed the duration of his employment with any representative of Roche, nor had he signed a contract specifying a definite duration. For these reasons, I believe that the trial court erred in allowing this question to go to the jury.
As a second theory, Campbell argues that Roche, under the terms of its employee handbook, unilaterally limited its right to terminate, because the handbook established
In White, the employee based his argument on handbook language that read:
In White, this Court stated:
Id., at 1090-91.
In Cunningham, this Court, noting that it had read the handbook involved in that case, said:
484 So.2d at 1076.
Pertinent portions of the "manual" in Cunningham read as follows:
"I. ORIENTATION PROCEDURES
"* * * *
"* * * *
"I. EMPLOYMENT STATUS
"* * * *
"* * * *
Etowah Quality of Life Council, Inc., Gadsden Neighborhood Health Clinic —Policies, at 7, 9. (Not set out in Cunningham.)
In the present case, plaintiff's employee handbook read in part:
At another point, the present handbook provides under the heading Constructive Discipline, as follows:
The employee "manual" in Cunningham, however, also contained a section on disciplinary procedures. In pertinent part, it read as follows:
Etowah Quality of Life Council, Inc., Gadsden Neighborhood Health Clinic —Policies, at 22.
The "manual" also contained sections dealing with the procedure to be followed
I find the principles set forth in White and Cunningham to be applicable to these handbook provisions; in my judgment the provisions of the handbook here and the provisions of the "manual" in Cunningham are indistinguishable; absent an agreement for a specified term or duration of employment, or other agreement limiting Roche's legal right to terminate, the employment is at-will.
Admittedly, the contractual status of employee handbooks has been the subject of a great deal of litigation in recent years, and this is the third time this particular court has reviewed the principle. In the past this Court, and several other courts have rejected the notion that an employee handbook or manual can create a binding contractual obligation. Cunningham, supra; White, supra; Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 506 N.E.2d 919, 514 N.Y.S.2d 209 (1987); Wells v. Thomas, 569 F.Supp. 426 (E.D.Pa.1983); Uriarte v. Perez-Molina, 434 F.Supp. 76 (D.D.C.1977) (applying D.C. law); Heideck v. Kent General Hospital, Inc., 446 A.2d 1095 (Del.1982); Muller v. Stromberg Carlson Corp., 427 So.2d 266 (Fla.Dist.Ct.App.1983); Shaw v. S.S. Kresge Co., 167 Ind.App. 1, 328 N.E.2d 775 (1975); Johnson v. National Beef Packing Co., 220 Kan. 52, 551 P.2d 779 (1976); Sargent v. Illinois Institute of Technology, 78 Ill.App.3d 117, 33 Ill.Dec. 937, 397 N.E.2d 443 (1979); Mead Johnson & Co. v. Oppenheimer, 458 N.E.2d 668 (Ind.App.1984); Terrebonne v. Louisiana Ass'n. of Educators, 444 So.2d 206 (La.App.1983), cert. denied, 445 So.2d 1232 (La.1984); Longley v. Blue Cross & Blue Shield, 136 Mich.App. 336, 356 N.W.2d 20 (1984); Gates v. Life of Montana Ins. Co., 196 Mont. 178, 638 P.2d 1063 (1983); Buffolino v. Long Island Savings Bank, FSB, 126 A.D.2d 508, 510 N.Y.S.2d 628 (1987); Toshiba America, Inc. v. Simmons, 104 A.D.2d 649, 480 N.Y.S.2d 28 (1984); Patrowich v. Chemical Bank, 98 A.D.2d 318, 470 N.Y.S.2d 599, aff'd, 63 N.Y.2d 541, 473 N.E.2d 11, 483 N.Y.S.2d 659 (1984); Edwards v. Citibank, N.A., 100 Misc.2d 59, 418 N.Y.S.2d 269 (1979), aff'd, 74 A.D.2d 553, 425 N.Y.S.2d 327, app. dismissed, 51 N.Y.2d 875, 433 N.Y.S.2d 1020, 414 N.E.2d 400 (1980); Chin v. American Tel. & Tel. Co., 96 Misc.2d 1070, 410 N.Y.S.2d 737 (1978); Harris v. Duke Power Co., 83 N.C. App. 195, 349 S.E.2d 394 (1986), aff'd, 319 N.C. 627, 356 S.E.2d 357 (1987); Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253, 335 S.E.2d 79 (1985), rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986); Richardson v. Charles Cole Memorial Hospital, 320 Pa.Super. 106, 466 A.2d 1084 (1983); Bringle v. Methodist Hosp., 701 S.W.2d 622 (Tenn. App.1985); Reynolds Manufacturing Co. v. Mendoza, 644 S.W.2d 536 (Tex.Civ.App. 1982); Holloway v. K-Mart Corp., 113 Wis.2d 143, 334 N.W.2d 570 (Wis.App. 1983).
The majority wittingly or unwittingly follows Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983), which criticizes the rule announced in Johnson v. National Beef Packing Co., a case this Court used as authority for the decision in White v. Chelsea Industries, Inc., 425 So.2d 1090 (Ala.1983). In White, this Court specifically cited the cases of Johnson v. National Beef Packing Co., 220 Kan. 52, 551 P.2d 779 (1976), and Chin v. American Tel. & Tel. Co., 96 Misc.2d 1070, 410 N.Y.S.2d 737 (1978), unam. aff'd. no op., 70 A.D.2d 791, 416 N.Y.S.2d 160 (1979).
Of course, other courts, including a New Jersey court which considered a case against Hoffman-La Roche, and apparently involving the same handbook as that involved in this case, have held that an employee handbook may be contractually binding. See, e.g., Vinyard v. King, 728 F.2d 428 (10th Cir.1984) (applying Oklahoma law); Lincoln v. Sterling Drug, Inc., 622 F.Supp. 66 (D.Conn.1985) (Connecticut law); Barger v. General Electric Co., 599 F.Supp. 1154 (W.D.Va.1984) (Virginia law);
The two most recent cases on the effect of employee handbooks that my research has located are Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 506 N.E.2d 919, 514 N.Y.S.2d 209, (1987); and Duldulao v. Saint Mary of Nazareth Hosp., 115 Ill.2d 482, 106 Ill.Dec. 8, 505 N.E.2d 314 (1987).
In Sabetay v. Sterling Drug, Inc., the plaintiff alleged that he was wrongfully discharged from employment because he refused to participate in certain improper, unethical, and illegal activities, and because he "blew the whistle" on these alleged activities. He was employed by a division of the Bender Corporation without a written contract, and he alleged that his dismissal was in violation of two contractual obligations, the first arising from the "Corporate Employee Relations Policy" manual and the second arising from Sterling's "Code of Corporate Conduct" and "Internal Control Guide" (together referred to as the "Accounting Code").
In that case, the New York Court of Appeals held as follows:
"It is still settled law in New York that, absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party (Martin v. New York Life Ins. Co., 148 N.Y. 117, 121, 42 N.E. 416). The original purposes of the employment at-will doctrine were to afford employees the freedom to contract to suit their needs and to allow employers to exercise their best judgment with regard to employment matters.
"In recent years, however, the unfettered power of employers to dismiss employees without cause has come under sharp scrutiny (see, Blades, Employment At Will v. Individual Freedom on Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1404 (1967); and see generally, Note, Protecting Employees at Will Against Wrongful Discharge: The Public Policy Exception, 96 Harv.L.Rev. 1931 (1983)). To offset the harsh effect of the at-will doctrine and to afford workers a measure of job security, other courts have carved out exceptions to the common-law employment at-will doctrine (see, Petermann v. International Bhd. of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25; Trombetta v. Detroit, Toledo & Ironton R.R. Co., 81 Mich.App. 489, 265 N.W.2d 385; Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir.); Sheets v. Teddy's Frosted Foods, 179 Conn. 471, 427 A.2d 385) (recognizing claims of wrongful discharge based on dismissal for refusing to commit an unlawful act, or for performing a public obligation or for exercising a legal right); see also,
"In Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441, this court dealt with its longstanding acceptance of the common-law rule. The plaintiff, who had begun his career with another publishing house, was invited to join the staff of McGraw-Hill. As part of its recruitment effort, McGraw-Hill's representative assured the plaintiff that it was company policy not to terminate employees without just cause, and that employment at McGraw-Hill would bring the advantage of job security. Moreover, the application form Weiner signed specified that his employment would be subject to the provisions of the McGraw-Hill handbook on personnel policies. The handbook stated that `the company will resort to dismissal for just and sufficient cause only, and only after all practical steps toward rehabilitation or salvage of the employee had been taken and failed. However, if the welfare of the company indicates that dismissal is necessary, then that decision is arrived at and is carried out forthrightly,' id., at 460-461, 457 N.Y.S.2d 193, 443 N.E.2d 441. Weiner alleged that he had relied on these assurances when he left his former employer, forfeiting accrued fringe benefits and a proffered salary increase.
"After eight years of employment, Weiner was advised that he was discharged for `lack of application,' id., at 461, 457 N.Y.S.2d 193, 443 N.E.2d 441. He sued, alleging a breach of contract. McGraw-Hill countered that there was no contract of employment and that its promises of job security were not binding. While we found for Weiner, we adhered to our view that an employer has the right to terminate an at-will employee at any time for any reason or for no reason, except where that right has been limited by express agreement. The language in the McGraw-Hill handbook, coupled with the reference to the handbook in the employment application, amounted to an express agreement between those parties limiting the employer's otherwise unfettered right to terminate its employees. We also noted that to support his breach of contract claim, Weiner had alleged the following significant factors: `[F]irst, plaintiff was induced to leave Prentice-Hall with the assurance that McGraw-Hill would not discharge him without cause. Second, this assurance was incorporated into the employment application. Third, plaintiff rejected other offers of employment in reliance on the assurance. Fourth, appellant alleged that, on several occasions when he had recommended that certain of his subordinates be dismissed, he was instructed by his supervisors to proceed in strict compliance with the handbook and policy manuals because employees could be discharged only for just cause. He also claims that he was told that, if he did not proceed in accordance with the strict procedures set forth in the handbook, McGraw-Hill would be liable for legal action.' Id., at 465-466, 457 N.Y.S.2d 193, 443 N.E.2d 441.
"Not surprisingly, because of the explicit and difficult pleading burden, post-Weiner plaintiffs alleging wrongful discharge have not fared well (see, O'Connor v. Eastman Kodak Co., 65 N.Y.2d 724, 492 N.Y.S.2d 9, 481 N.E.2d 549; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86; Collins v. Hoselton Datsun, 120 A.D.2d 952, 503 N.Y.S.2d 203; Citera v. Chemical Bank, 105 A.D.2d 636, 481 N.Y.S.2d 694; Patrowich v. Chemical Bank, 98 A.D.2d 318, 470 N.Y.S.2d 599) (claim dismissed because the language relied on was not sufficient to establish an express agreement); Rizzo v. International Bhd. of Teamsters, 109 A.D.2d 639, 486 N.Y.S.2d 220 (claim dismissed because employee failed to establish detrimental reliance on the assurance of job security).
"In Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86, we not only refused to recognize a common-law tort theory of liability based on abusive or wrongful discharge but more important and relevant to the instant case, we refused to adopt the
"Murphy had alleged that he had been discharged for internally reporting to top management certain alleged accounting improprieties. He contended that his company's internal regulation required him to refrain from engaging in such illegal activities and also compelled the reporting of such activities. On Murphy's breach of contract claim he urged that, although his employment was of indefinite duration there was an implied obligation in all employment contracts to deal fairly and in good faith, and that a termination in violation of that obligation exposes the employer to liability.
"We rejected plaintiff's invitation to find an implied covenant of good faith in the employment contract. In so ruling, we distinguished an employment contract from other types of contract where the implied-in-law theory has been adopted. Noting that a covenant of good faith can be implied only where the implied term is consistent with other mutually agreed upon terms in the contract, we stated: `New York does recognize that in appropriate circumstances an obligation of good faith and fair dealing on the part of the party to a contract may be implied and, if implied, will be enforced (e.g., Wood v. Duff-Gordon, 222 N.Y. 88 (118 N.E. 214); Pernet v. Peabody Eng. Corp., 20 A.D.2d 781 (248 N.Y.S.2d 132)). In such instances the implied obligation is in aid and furtherance of other terms of the agreement of the parties. No obligation can be implied, however, which would be inconsistent with other terms of the contractual relationship * * in which the law accords the employer an unfettered right to terminate employment at any time. In the context of such an employment it would be incongruous to say that an inference may be drawn that the employer impliedly agreed to a provision which would be destructive of his right of termination * * * to imply such a limitation from the existence of an unrestricted right would be internally inconsistent.' (Id., [58 N.Y.2d] at 304-305, 461 N.Y.S.2d 232, 448 N.E.2d 86). Lastly, we concluded that Murphy had failed to establish an express limitation on the employer's right of discharge under the strict guidelines established in Weiner. Id., [58 N.Y.2d at 305, 461 N.Y.S.2d 232, 448 N.E.2d 86].
"Dispositive in Murphy was plaintiff's failure to establish an express limitation on his employer's right of discharge, (id., [58 N.Y.2d] at 305 [461 N.Y.S.2d 232, 448 N.E.2d 86]; accord, O'Connor v. Eastman Kodak Co., 65 N.Y.3d 724, 492 N.Y.S.2d 9, 481 N.E.2d 549, supra). Although plaintiff had made general references to an employer's manual, he cited no provisions pertinent to the right to termination—certainly none rising to the explicit restriction that, in the circumstances of Weiner, was found to be actionable. Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 305, 461 N.Y.S.2d 232, 448 N.E.2d 86, supra.
"As in Murphy, plaintiff Sabetay has failed to demonstrate a limitation by express agreement on his employer's unfettered right to terminate at will, and all four of the breach of contract causes of action must be dismissed. To the contrary, the language in Sterling's personnel handbook, "Accounting Code" and employment application refutes any possible claim of an express limitation. The personnel manual was circulated to an extremely limited number of Sterling managerial employees solely for the purpose of determining post-termination benefits, and plaintiff was not one of those few employees authorized to receive a copy. Similarly, the "Accounting Code" and statement on the employment application requiring Sterling employees to abide by company rules do not, taken together, rise to an express agreement that Sterling would not dismiss an employee for following its policies of full disclosure of business improprieties. Rather, these two documents merely suggest standards set by Sterling for its employees' performance of their duties that, without more, cannot be actionable.
"We have noted that significant alteration of employment relationships, such as the plaintiff urges, is best left to the Legislature. See, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 301-302, 461 N.Y.S.2d 232, 448 N.E.2d 86, because stability
"Indeed, the Legislature has responded to this appropriate sensitivity by enacting numerous protections against abusive discharge and by prohibiting employers from discharging at-will employees for reasons contrary to public policy (see, Judiciary Law § 519; Executive Law § 296(1)(e); Labor Law §§ 215, 740; Civil Service Law § 75-b).
"In sum, to sustain the plaintiff's complaint in this case, the court would have to relax the Weiner requirements, to expand the Weiner holding into the implied contract category, and to overrule the recently resolved Murphy rejection of implied covenants in employment relationships. Based on stare decisis principles and sound contractual and policy reasons, we do not believe we should do any of those things, no less all of them."
In Duldulao v. Saint Mary of Nazareth Hosp., the Illinois Supreme Court, following the case of Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983), which is relied upon so heavily by the majority as persuasive authority, did hold, as follows:
"Following the reasoning in Pine River, we hold that an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after
I would point out, however, that in Duldulao, the Court was considering the question for the first time. In Alabama, we have already considered the question and have direct authority to the contrary. Cunningham, supra; White v. Chelsea Industries, Inc., supra. I am of the opinion that the Cunningham and White decisions are controlling in this case. White is cited in Duldulao as a decision that reached a result opposite from that of Duldulao.
The New York court in Edwards v. Citibank, N.A., supra, set forth the contract principles that this Court applied in White, and which, in my opinion, are the law of this state:
100 Misc.2d at 60, 418 N.Y.S.2d at 270. In fact, the opinions in White and Edwards and the most recent decision of the New York Court of Appeals in Sabetay are like mirror images of each other.
Ninety-six years ago, in Howard v. East Tennessee, Virginia & Georgia Railroad, 91 Ala. 268, 8 So. 868 (1891), this Court adopted what is commonly known as the employment-at-will rule. The rule, stated simply, is that "an employment contract at will may be terminated by either party with or without cause or justification." Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130, 1131 (Ala.1977). The employer may fire, or the employee may quit, for "a good reason, a wrong reason, or no reason." Id.
The employment-at-will rule had gained widespread acceptance in this country by the turn of the century. Note, The Employment at Will Rule, 31 Ala.L.Rev. 421, 424 (1980). As an extension and reflection of the laissez-faire /freedom-of-contract philosophy of the day, the rule was perceived as a step forward from the preceding era's paternalistic attitude in employment relationships. Comment, Employment-at-Will: Defining the Parameters, 16 Cumb.L.Rev. 377, 390 (1986) (hereinafter cited as Comment, Employment-at-will). See also, Note, Protecting Employees at Will Against Wrongful Discharge: The Public Policy Exception, 96 Harv.L.Rev. 1931 (1983) (hereinafter cited as Note, Protecting Employees at Will).
In recent years, the employment-at-will rule has been severely criticized by legal commentators as being "unacceptable in light of today's economic, technological, and sociological realties." See Note, Protecting Employees at Will, supra, at 1931,
This Court has not been blind to the fact that "[t]he rule has been applied to obtain harsh and inequitable results" in Alabama. Meredith v. C.E. Walther, Inc., 422 So.2d 761, 762 (Ala.1982). We have consistently refused, however, to recognize an exception to the employment-at-will rule. In Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977), this Court, in a modern-day pronouncement of the rule, explained why it would not adopt an exception: An exception would (1) "abrogate the inherent right to contract between employer and employee"; (2) "overrule existing Alabama law"; and (3) invade the province of the legislature, the body best suited for the creation of such an exception. Id. at 1131.
Following Tranquilaire, we received a deluge of appeals requesting that we overrule Tranquilaire and adopt a public policy exception to the employment-at-will rule. Williams v. Killough, 474 So.2d 680 (Ala. 1985); Meeks v. Opp Cotton Mills, Inc., 459 So.2d 814 (Ala.1984); Reich v. Holiday Inn, 454 So.2d 982 (Ala.1984); Johnson v. Gary, 443 So.2d 924 (Ala.1983); Kitsos v. Mobile Gas Service Corp., 431 So.2d 1150 (Ala.1983); White v. Chelsea Industries, Inc., 425 So.2d 1090 (Ala.1983); Dreyspring v. Kar Products, Inc., 422 So.2d 764 (Ala.1982); Meredith v. C.E. Walther, Inc., 422 So.2d 761 (Ala.1982); Bates v. Jim Walter Resources, Inc., 418 So.2d 903 (Ala. 1982); Bender Ship Repair, Inc. v. Stevens, 379 So.2d 594 (Ala.1980); Newby v. City of Andalusia, 376 So.2d 1374 (Ala. 1979); Bierley v. American Cast Iron Pipe Co., 374 So.2d 1341 (Ala.1979); Martin v. Tapley, 360 So.2d 708 (Ala.1978). In Bender Ship Repair, Inc. v. Stevens, 379 So.2d 594 (Ala.1980), we declined to adopt such an exception and upheld the right of an employer to discharge an employee for his absence from work based upon his response to a subpoena for jury duty. We again declined to modify the Tranquilaire employment-at-will rule in Meeks v. Opp Cotton Mills, Inc., 459 So.2d 814 (Ala. 1984). There, we upheld an employer's right to fire an employee for the sole reason that he brought against his employer a worker's compensation claim for job-related injuries.
Our holdings in Bender Ship Repair and Meeks prompted the legislature to enact Code 1975, § 12-16-8.1 and § 25-5-11.1 (Cum.Supp.1985). These sections read as follows:
These expressions by our legislature concerning the public policy of this state as regards employment-at-will, shows that the legislature has changed the pure application of the employment-at-will rule. Also the socio-economic reasons that produced the employment-at-will rule in this country in the first place, and made its pure application desirable, may no longer exist, but this Court, until today, has refused to adopt even a narrow "public policy" exception to the rule. Jones v. Ethridge, 497 So.2d 1107 (Ala.1986). Until today this Court has refused to expand the principles of contract law in handbook cases. Cunningham, supra; White, supra.
The majority correctly states that an "increasing number of jurisdictions have given contractual effect to language contained in handbooks," but most of those cases have been decided since 1980, and that is no reason to distinguish or overrule Cunningham and White, decided in 1983 and 1986 respectively. Most states do not follow the rule this Court adopted in Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977), and followed in Jones v. Ethridge, supra, and while I have not independently checked the law of each of the jurisdictions that have recognized that an employee handbook can create an implied, binding obligation on the employer, I know that various states have rules of law applicable to employment contracts which are different from the Alabama rule. Many states may regulate hiring and firing practices more minutely than does Alabama. Some of these principles are set out in Sabetay, from which I quote extensively, because it states what I thought the Alabama rule was.
While this Court has the power to distinguish the Cunningham and White cases, or to overrule them, I believe the principle of stare decisis is especially applicable to cases of such recent vintage, particularly where the public policy reasons behind the cases has not been changed, either legislatively or judicially. Sabetay, supra.
Assuming, however, that Cunningham and White stand only for the proposition that each employer-employee dispute involving an employee handbook or manual will be reviewed on a case-by-case basis, I still, nevertheless, cannot find the cases to be distinguishable.
In White, the employee contended that he could be discharged only "for cause," because of handbook language stating:
This Court concluded that, contrary to the employee's contention, the handbook language did not limit the employer's right to discharge its employees for any reason.
In the present case, the plaintiff's employee handbook read, in part:
At another point, the handbook in this case provides, under the heading "Constructive Discipline," as follows:
The word "generally," which is used in the handbook, in my opinion, means "usually," and the words "generally" and "normally" are used in the "manual" in Cunningham, but even if the handbook here was held to create a binding obligation, I believe the language used in this handbook and the language used in the handbook in the Pine River case cited by the majority are easily distinguishable. In that case, the handbook section entitled "Disciplinary Policy" provided as follows:
Pine River, 333 N.W.2d at 626 n. 3. The language in the Pine River handbook is mandatory, whereas the language in the Roche handbook could be described as hortatory.
The plaintiff cites this Court to several of its decisions involving employee relationships with American Cast Iron Pipe Company (ACIPCO). See Farlow v. Adams, 474 So.2d 53 (Ala.1985); Smith v. American Cast Iron Pipe Co., 370 So.2d 283 (Ala. 1979); Duff v. American Cast Iron Pipe Co., 362 So.2d 886 (Ala.1978). The majority relies on these decisions to support the result it reaches here. Duff was decided in 1978, long before the decisions in Cunningham and White, and this Court, in Cunningham and White, apparently attached no significance to the ACIPCO cases. I believe those case are inapposite here. ACIPCO's relationship with its employees is unique to the world of business and must be considered sui generis. As was discussed in Farlow, supra, the employment relationship at ACIPCO is a hybrid of employment contract principles and trust principles, and the employees actually have a role in managing the company; therefore, decisions in those cases are not controlling on the case at hand.
Because I believe no enforceable obligation was breached by Roche, I believe the trial court erred in failing to direct a verdict in Roche's favor on the contract count. For that reason, I would reverse the judgment of the trial court.
It is possible that I should apply the principle Judge Cardozo advanced:
Nevertheless, the doctrine of stare decisis is a powerful force in our jurisprudence. While I recognize that it should never be used to perpetuate error, it seems inappropriate for this Court to overrule two cases decided within the past four years and to establish a principle of contract law in employer-employee relationships that can be expanded to cover oral agreements or implied agreements.
The litigant here is afforded better treatment than were the litigants in Cunningham and White. Personally, I do not favor a termination-at-will doctrine that allows an employer to fire an employee under circumstances like those in Hinrichs and in Jones v. Ethridge, but the legislature has convened several times since the Hinrichs case was decided, and has not overturned the doctrine of that case. It has, as pointed out in this dissent, addressed two of our cases, Meeks, supra, and Bender Ship Repair, supra, but it has not dealt with the whole termination-at-will doctrine; therefore, it is aware of the public policy issues. Sabetay, supra.
I believe that the legislature is the appropriate body of government to address the policy considerations arising out of employer-employee relationships. Many employees are granted job security and fringe benefits by civil service laws, union contracts, or specific individual contracts, which state the term of employment and the benefits available and the rights of the parties in case of disagreement. There are many laws, state and federal, which restrict employer hiring and firing practices that are discriminatory or constitute an unfair labor practice.
As I have already pointed out, the termination-at-will doctrine has been severely criticized, and several jurisdictions admittedly follow the new rule announced by this Court today when there is an employee handbook or manual, and maybe I should join the majority in this case and determine that the old termination-at-will doctrine, and the requirement of mutuality of contract in employer-employee relationships should no longer be followed, but I cannot do so in this case. Sabetay, supra.
At the very least, I would give the legislature a chance to adopt a state policy before declaring it by case law. See Utica Mutual Ins. Co. v. Tuscaloosa Motor Co., 295 Ala. 309, 329 So.2d 82 (1976), wherein a three-judge plurality wrote:
The legislature is in a better position to determine the specific public policy considerations and to strike a balance between the competing interests, in my opinion; therefore, for those reasons, I must respectfully dissent.
HOUSTON, J., concurs.
We especially note that this Court's decision in Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986), although it discusses public policy, should not be read as recognizing a public policy exception. Indeed, the cases cited in this case decided after Harrell indicate that it cannot be so read.
An employee could reasonably, and justifiably, believe that, unless he had committed one of the expressly enumerated "serious offenses," the disciplinary pattern would follow the four-step process listed in the manual.
We note that Roche argues in its brief that Campbell was actually fired for "insubordination"—one of the enumerated serious offenses—and could, therefore, be discharged for a first offense. However, no such argument was made at trial. Therefore, it should not be considered. See, e.g., First National Bank of Pulaski, Tennessee v. Thomas, 453 So.2d 1313 (Ala.1984). Even if it had been argued, it is clear that whether or not, as a matter of fact, the discharge had been made because of insubordination would have been a question of fact for the jury. The jury could have decided the issue adversely to Roche.