(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: This is a companion case to Anthony Nicosia v. Wakefern Food Corporation, also decided
today.)
Argued January 3, 1994 -- Decided June 30, 1994
HANDLER, J., writing for a unanimous Court.
Edward Witkowski, a maintenance mechanic, was fired by his employer, Thomas J. Lipton, Inc.
(Lipton), a manufacturing company with a large work force. Witkowski and his wife sued Lipton alleging,
among other claims, that Witkowski was wrongfully discharged because the company employment manual,
which provides procedures for termination, constitutes an implied employment contract that bars termination
without cause.
Lipton moved for summary judgment seeking dismissal of the complaint, contending that Witkowski
was an "at-will" employee and could be fired without cause because its manual did not express a
comprehensive termination policy and, thus, did not create an implied employment contract.
The trial court granted summary judgment, finding as a matter of law that the Lipton manual did
not express a comprehensive policy concerning employment termination and, therefore, was not a binding
contract between the parties.
On appeal, the Appellate Division reversed the judgment of the trial court and remanded the matter,
finding the manual created a factual question of an employment contract. The Supreme Court granted
Lipton's petition for certification.
HELD: The terms and conditions of the employee manual give rise to a factual question of whether
Edward B. Witkowski could reasonably expect that the manual provided job security, thereby
creating an implied contract of employment under Woolley v. Hoffman-LaRoche.
1. The evidence would support a determination that the Lipton employee manual established an
implied employment contract that governed termination of employment. In determining whether an
employment manual gives rise to contractual obligations, the key question is the reasonable expectations of
the employees. There is no categorical test but certain factors are relevant in determining whether such a
manual creates a contract. Those factors ordinarily relate to both the manual's specific provisions and the
context of its preparation and distribution. (pp. 6-10)
2. Comprehensiveness of job-security provisions is one of several factors a court should consider in
determining whether the termination policy gives rise to an implied contract under Woolley. A termination
policy does not have to be set forth exhaustively or list every "just cause" ground for termination to support a
finding that the job-security provision contained in the manual gives rise to employees' reasonable
expectations of that provision's enforceability. Therefore, the manual's wide distribution and the definiteness
and comprehensiveness of the termination policy could reasonably lead an employee to expect that the
Lipton employee manual created enforceable employment obligations. (pp. 10-14)
3. Lipton contends that if an implied employment contract is found to arise from its manual under the circumstances of the case, the employment-at-will presumption will be nullified in New Jersey. That is not
so. In New Jersey, an employer may fire an at-will employee without cause, except for a discriminatory
reason or for reasons that violate public policy. However, if an employee can prove that an employee
manual containing job-security and termination procedures could reasonably be understood by an employee
to create binding duties and obligations between the employer and its employees, the manual will constitute,
in effect, a unilateral offer to contract that an employee may accept through continued employment. Only in
those circumstances will an employment manual overcome the presumption that employment is at will.
(pp. 14-17)
4. The matter must be remanded to a jury for a determination of whether an employee could
reasonably expect that the Lipton manual provided job security, thereby creating an implied contract of
employment. If it is determined that a contract does exist, the jury must then determine whether pursuant to
the employment manual, Witkowski was guilty of the allegations of stealing company property. If so, Lipton
can fire him for cause. Under Woolley an implied contract based on an employment manual may be
negated by the inclusion of a clear and prominent disclaimer. Because the existence and enforceability of the
purported disclaimer in the Lipton employee manual was not adjudicated in the lower court, that issue must
be resolved on remand. Nicosia, also decided today, should govern the trial court's disposition of that issue.
(pp. 17-19)
Judgment of the Appellate Division is AFFIRMED and the matter is REMANDED for further
proceedings.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, POLLOCK, GARIBALDI and STEIN
join in JUSTICE HANDLER's opinion. JUSTICE O'HERN did not participate.
SUPREME COURT OF NEW JERSEY
A-
78 September Term 1993
EDWARD B. WITKOWSKI,
Plaintiff-Respondent,
and
JANICE M. WITKOWSKI,
Plaintiff,
v.
THOMAS J. LIPTON, INC.,
Defendant-Appellant,
and
JOSEPH DIRADDO and EDWARD
KEARNS,
Defendants.
Argued January 3, 1994 -- Decided June 30, 1994
On certification to the Superior Court,
Appellate Division.
Francis X. Dee argued the cause for appellant
(Carpenter, Bennett & Morrissey, attorneys;
Mr. Dee and David J. Reilly, on the briefs).
Paul L. Kleinbaum argued the cause for
respondent (Zazzali, Zazzali, Fagella &
Nowak, attorneys).
The opinion of the Court was delivered by
HANDLER, J.
In this case, an employee who worked as a maintenance
mechanic for a manufacturing company with a large workforce was
fired by his employer. The employee claims that his discharge
was wrongful because the employment manual, which provides
grounds and procedures for termination, constitutes an employment
contract that was not followed in the employee's discharge. The
employer claims that the employee's discharge was not wrongful.
It contends that the employee was hired as an "at-will" employee
who could be fired without cause.
This case, as does the companion case of Nicosia v. Wakefern
Food Corp., __ N.J. __ (1994), also decided today, requires the
Court again to consider, in light of Woolley v. Hoffman LaRoche,
99 N.J. 284, modified,
101 N.J. 10 (1985), the circumstances
under which an employment manual may create an enforceable
contract requiring the employer to discharge an employee only for
cause in accordance with the manual's provisions.
Plaintiff Edward Witkowski ("Witkowski") was fired by defendant Thomas J. Lipton, Inc. ("Lipton") for theft when a can of oil was discovered in his locker. Witkowski denied that he had stolen the oil and asserted that under Lipton's employment manual he could not be fired without cause.
Witkowski and his wife filed a complaint against Lipton alleging, among other claims, wrongful discharge due to breach of contract based on Lipton's employment manual. Defendant moved
for summary judgment, seeking dismissal of the complaint in its
entirety. Defendant argued that Witkowski was an "at will"
employee who could be fired without cause and that its manual did
not express a comprehensive termination policy but merely
provided some examples of terminable offenses and thus did not
create an implied employment contract. Plaintiff Edward
Witkowski opposed the motion, attacking solely the defense to the
wrongful-discharge allegation of the complaint. The trial court
found "as a matter of law that the [Lipton] manual . . . was not
intended to be a comprehensive treatment of the subject of
employment termination and therefore there was no contract
between plaintiff and defendant." Accordingly, it granted
Lipton's motion for summary judgment.
Plaintiff appealed the decision to the Appellate Division,
arguing that genuine issues of material fact existed regarding
the existence of an employment contract based on the employment
manual. That court, in an unreported per curiam opinion,
reversed the judgment of the trial court and remanded, finding
that the manual "created a factual question of an employment
contract."
Defendant filed a petition for certification, which we
granted.
134 N.J. 480 (1993). We affirm the judgment of the
Appellate Division.
Lipton hired Witkowski in June 1980 as a Class B Maintenance Mechanic. In October 1989, a routine United States Department of Agriculture inspection of employee lockers revealed that plaintiff's locker contained a can of CRC industrial 3.36 lubricating oil, a type of oil used on the "demand conveyor car clutches" at the Lipton plant. Lipton fired Witkowski on the grounds that he had stolen the lubricating oil. Witkowski denied that he had stolen the oil, claiming that he had permission from his supervisor to keep the oil in his locker. Despite his denial, Lipton discharged Witkowski based on the alleged theft.
When he was hired, Witkowski received an employment manual from Lipton's personnel department entitled "Your Life at Lipton -- Flemington Plant" ("manual"). The Lipton manual is divided into four sections: Section I - "Introduction"; Section II "General Information"; Section III - "Your Job & Your Earnings"; and Section IV - "Employee Rights." Section I of the Lipton manual describes the history of Lipton and contains a statement of Lipton's equal-employment-opportunity policy. Section III includes information detailing salaries, promotions and transfers, overtime, and layoffs. Section IV provides information concerning certain benefits available to Lipton employees.
Section II covers several policies, including safety and sanitation, medical services, personnel and attendance, and
leaves of absence. Under the heading "Some Important Basics" and
the subheading "Trial Period," Section II provides:
Time and effort are required on the part of
an applicant seeking employment. Usually,
considerable [sic] more of both is spent by
the company. It is, therefore, in the best
interests of both the applicant and the
company that associations be entered into
only when a mutually satisfactory and
worthwhile relationship will occur.
To this end we try to learn everything about
applicants which is relevant to their success
on the job with Lipton. We likewise try to
inform applicants about the job and company
requirements and benefits in order that they
may decide whether or not they wish to accept
employment.
This careful manner of applicant selection
before employment has proven successful over
the years. The best judgement, however, does
not always fully replace actual performance
on the job. It is our policy, therefore, to
treat the first three months of employment as
a trial period during which time supervisors
will be expected to decide whether or not to
consider the employee qualified to become a
regular employee.
The last page of Section II, under the heading "Warning
Notices," provides:
In fairness to both employees and the company
we have a system of warning notices for
violation of company policies or rules.
Employees with poor records for lateness,
absence, infringement of company rules or
sanitation and safety regulations will be
spoken to by their supervisor. A second
infraction will mean a written warning, a
copy of which is filed with the Personnel
Department.
If the employee's record does not improve sufficiently, he or she will receive a second written warning notice. The third written notice constitutes grounds for dismissal. In some situations, depending on the seriousness
of the rules' infraction, a suspension from
work may be given in addition to the first or
second notice.
Some violations of company policies are
grounds for immediate dismissal. Some
examples of these include:
1. Being unfit for work because of
excessive use of intoxicants
2. Consuming intoxicants on the
premises
3. Professional gambling on
company premises
4. Fighting, wrestling and
"horseplay" on premises
5. Clocking the time card of
another employee
6. Insubordination
7. Stealing or unauthorized
possession of Company property
The alleged violation of company policy that constituted the
grounds for Witkowski's immediate dismissal was that encompassed
by the seventh example: "Stealing or unauthorized possession of
Company property."
The overriding issue presented is whether the Lipton manual created an employment contract that conferred on plaintiff the right to be discharged only in accordance with the terms of the manual. The Appellate Division reviewed the Lipton manual and found that the evidence would support a determination that the
manual established an implied employment contract that governed
termination of employment. We agree.
An employment manual providing terms and conditions of
employment that include grounds and procedures for dismissal can
create an employment contract. This Court held in Woolley that
"absent a clear and prominent disclaimer, an implied promise
contained in an employment manual that an employee will be fired
only for cause may be enforceable against an employer even when
the employment is for an indefinite term and would otherwise be
terminable at will." 99 N.J. at 285-86. Therefore, the Court
ruled that the termination clause of the company's employment
handbook, including the procedure required before termination,
could be contractually enforced.
The Court in Woolley explained that "[a] policy manual that
provides for job security grants an important, fundamental
protection for workers." Id. at 297. In that case, the
termination policy was "definite," id. at 305 n.12, "explicit and
clear," id. at 306, and provided "a fairly detailed procedure,"
id. at 287 n.2. Hence, the Court reasoned "job security
provisions contained in a personnel policy manual widely
distributed among a larger workforce are supported by
consideration and may therefore be enforced as a binding
commitment of the employer." Id. at 302.
The key consideration in determining whether an employment
manual gives rise to contractual obligations is the reasonable
expectations of the employees. "When an employer of a waiving
substantial number of employees circulates a manual that, when
fairly read, provides that certain benefits are an incident of
the employment (including, especially, job security provisions),"
courts should continue and enforce that manual "in accordance
with the reasonable expectations of the employees." Id. at 297-98.
No categorical test can be applied in determining whether an
employment manual when fairly read gives rise to the reasonable
expectations of employees that it confers enforceable
obligations. Certain factors, however, will generally be
relevant in determining whether such a manual creates a contract.
Those ordinarily relate to both the manual's specific provisions
and the context of its preparation and distribution. Id. at 299.
An established employment manual that expresses "'company-wide
employer policy'" may give rise to an implied contract of
employment if its provisions "contain an express or implied
promise concerning the terms and conditions of employment."
Gilbert v. Durand Glass Mfg. Co., Inc.,
258 N.J. Super. 320, 330
(App. Div. 1992) (quoting Shebar v. Sanyo Business Sys. Corp.,
218 N.J. Super. 111, 120 (App. Div. 1987), aff'd,
111 N.J. 276
(1988)); see Woolley, supra, 99 N.J. at 302; Kevin C. Donovan &
David J. Reilly, Employment "By the Book" in New Jersey: Woolley
and Its Progeny,
22 Seton Hall L. Rev. 814, 826 (1992) (observing
that under Woolley "an explicit statement of a specific, detailed
employer policy, not undermined by any other language in the
handbook, is required to establish that the employer is clearly
waiving its right to discharge without cause"). However, in
Woolley, "[w]ithout minimizing the importance of [the manual's]
specific provisions," the Court also emphasized that the Hoffman-La Roche employment manual created an implied contract of
employment because of "the context of the manual's preparation
and distribution." 99 N.J. at 299.
In sum, under Woolley, the basic test for determining
whether a contract of employment can be implied turns on the
reasonable expectations of employees. A number of factors bear
on whether an employee may reasonably understand that an
employment manual is intended to provide enforceable employment
obligations, including the definiteness and comprehensiveness of
the termination policy and the context of the manual's
preparation and distribution.
Lipton contends that its manual did not contain a
comprehensive termination policy and thus did not create a
contract because the provision relating to termination listed
only seven examples of terminable offenses, which could not be
understood or construed by an employee to be binding or to
prohibit the firing of an employee without cause.
The trial court found that "[t]his case is not like Woolley
where the employment manual contains specific procedures and
guidelines for termination." The court noted that the manual did
not expressly delineate all grounds for immediate dismissal: "By
the very language of the employee manual, Lipton leaves the
possibility open that there may be other grounds for immediate
dismissal and that only . . . 'some examples' . . . are merely a
portion of the grounds."
The Appellate Division concluded that the trial court's
interpretation of the termination policy was "too narrow," and
"although the list [of terminable offenses] is not exhaustive,
other grounds would be limited by the construction principle that
they fall into the same class or category of violation." We
concur in the Appellate Division's analysis and conclusion.
Comprehensiveness of job-security provisions is just one of
several factors for a court to consider in determining whether
that policy gives rise to an implied contract under Woolley. The
Court in Woolley observed that that manual contained a "fairly
detailed procedure to be used before an employee may be fired for
cause." 99 N.J. at 287 n.2. However, the Court found that the
list of terminable offenses enumerated in the Hoffman-LaRoche
manual set guidelines for determining what constituted cause for
termination, id. at 310-13, and that the overall termination
policy was "explicit and clear," id. at 306. Nowhere did the
Court imply that a termination policy must be set forth
exhaustively or list every "just cause" ground for termination to
find that the job-security provision contained in the manual
could give rise to employees' reasonable expectations of that
provision's enforceability.
In Preston v. Claridge Hotel & Casino, 231 N.J. Super. 81
(App. Div. 1989), the employer attempted to distinguish its
termination policy from that in Woolley, arguing that the
Hoffman-LaRoche policy was "more detailed and go[es] to greater length to spell out 'just cause'" than did that of Claridge's employee handbook. Id. at 85. The court reasoned that although the company's policies did not "expressly declare that employees will be fired only for just cause," such a contract was created because of the existence of several Woolley factors: the handbook was widely distributed; employees were required to read and sign employee handbook "acknowledgement form"; the manual contained a four-step progressive-discipline procedure and enumerated "types of prohibited conduct"; and the handbook made various representations of "maximum job security." Ibid.; see House v. Carter-Wallace, Inc., 232 N.J. Super. 42, 55 (App Div.), certif. denied, 117 N.J. 154 (1989); see also Schwartz v. Leasametric, Inc., 224 N.J. Super. 21, 31 (App. Div. 1988) (holding that employment manual with termination policy that provided non-exhaustive list of dischargeable offenses as well as three-step progressive-discipline procedure gave rise to implied contract); cf. Kane v. Milikowsky, 224 N.J. Super. 613 (App. Div. 1988) (ruling that employer's one-page memorandum, which listed twenty-seven terminable offenses, that was not widely distributed did not constitute an implied promise to fire only for just cause); Radwan v. Beecham Laboratories, 850 F.2d 147, 149, 151 (3d Cir. 1988) (holding no implied contract where termination policy that provided dismissal for cause "may include, but is not limited to" six examples because manual's "'fairly detailed enumeration of grounds for dismissal with cause' is not
exclusive") (quoting Woolley, supra, 99 N.J. at 287 n.2); Donovan
& Reilly, supra,
22 Seton Hall L. Rev. at 827 (finding that Kane
"memorandum contained neither a comprehensive treatment of the
subject of termination nor clear and specific job security
provisions --- key prerequisites to a Woolley contract -- and
therefore no enforceable promise existed").
In this case, Lipton distributed its manual to all
employees. The wide distribution of the manual indicates that
Lipton understood that it would be read and considered by all its
employees. See Woolley, supra, 99 N.J. at 298 (finding that
although employment manual had been distributed to only 300 of
3,000-person workforce, employer clearly intended that manual
apply to all employees). We can infer that Lipton sought to gain
the cooperation and loyalty of its employees by creating the
employment manual and through its wide dissemination reasonably
demonstrated its intent that the manual apply to the entire
workforce.
In addition, the specific provisions of the manual relating
to job security are sufficiently definite and comprehensive,
thereby reinforcing the conclusion that Lipton intended those
provisions to be regarded by its workforce as enforceable. See
Gilbert, supra, 258 N.J. Super. at 257. The manual's terms cover
all employees. See Woolley, supra, 99 N.J. at 298. The manual
distinguishes between "trial employees" and "regular employees,"
indicating that a new employee must be "qualified to become a
regular employee." It was clearly reasonable for Lipton
employees to expect that if an employee successfully completes
the three-month "trial" period and "qualifie[s]" as a "regular
employee," he or she then would be considered a "regular
employee" subject to the duties and entitled to the benefits and
safeguards of "regular" employees. See Fregara v. Jet Aviation
Business Jets,
764 F. Supp. 940, 950 (D.N.J. 1991) (noting
argument that "if the company expressly reserves the right to
fire for any reason during the probationary period, then the
employee who survives has earned the protection of a 'just cause
requirement' for termination"); Beales v. Hillhaven, Inc.,
825 P.2d 212, 216 (Nev. 1992) (noting that distinction between
"permanent" and "probationary" employee status "should be
considered as one fact in determining if the employee is
something other than at will, [but] this designation alone is
insufficient to change the presumption of at will employment");
Andrew D. Hill, "Wrongful Discharge" and the Derogation of the
At-Will Doctrine 116 (1987) (noting that handbook that provides
"probationary period" may imply that after probationary period
had been successfully completed, employee can be terminated only
for just cause).
Furthermore, the employment conditions that apply to
"regular employees" include those in the section under "Warning
Notices," which delineates seven employment infractions that will
result in "immediate" dismissal. Similar to the manual in
Preston, supra, the Lipton manual also provides a progressive
discipline procedure. 231 N.J. Super. at 86; see Pine River
State Bank v. Mettille,
333 N.W.2d 622 (Minn. 1983) (finding
implied contract based on manual in part because of definite and
detailed four-step disciplinary procedure); cf. Johnston v.
Panhandle Co-op. Ass'n,
408 N.W.2d 261, 268 (Neb. 1987) (finding
no implied contract based on manual because it failed to provide
any "disciplinary procedures short of termination"). See
generally Ira M. Shepard et al., Without Just Cause: An
Employer's Practical and Legal Guide on Wrongful Discharge 207
(1989) (noting that employers are not required to establish "a
formal progressive discipline policy," but that "judges and
juries expect employers to provide their employees with
reasonable notice of shortcomings and an opportunity to correct
them").
In conclusion, the Lipton manual's wide distribution and the
definiteness and comprehensiveness of its termination policy
could reasonably lead an employee to expect that the manual
created enforceable employment obligations.
Finally, Lipton claims that if this Court finds that an
implied employment contract arises from its manual under these
circumstances, the employment-at-will presumption will be
nullified in New Jersey. It argues that any manual that broadly
deals with employee relations will now "give rise to an implied
contract to discharge only for cause, even if the manual does not
promise continued employment and does not contain a comprehensive
termination policy."
In New Jersey, an employer may fire an employee for good
reason, bad reason, or no reason at all under the employment-at-will doctrine. English v. College of Medicine & Dentistry,
73 N.J. 20, 23 (1977). An employment relationship remains
terminable at the will of either an employer or employee, unless
an agreement exists that provides otherwise. See Bernard v. IMI
Sys., Inc.,
131 N.J. 91, 105-06 (1993) ("Today, both employers
and employees commonly and reasonably expect employment to be at-will, unless specifically stated in explicit, contractual
terms."); Erickson v. Marsh & McLennan Co., Inc.,
117 N.J. 539,
561 (1990) ("A 'contentious' 'at-will' employee can be fired for
a false cause or no cause at all. The firing may be unfair but
it is not illegal."); Velantzas v. Colgate-Palmolive Co.,
109 N.J. 189, 191 (1988) ("An employer can fire an at-will employee
for no specific reason or simply because an employee is bothering
the boss.").
The employment-at-will doctrine does have exceptions,
however. For example, an employer may not fire a worker for a
discriminatory reason. See, e.g., N.J.S.A. 10:5-1 to -28
(prohibiting discrimination on basis of race, creed, sex, age,
marital status, ancestry, national origin, family status, or
sexual orientation). Similarly, an employer may not fire an
employee if the "discharge is contrary to a clear mandate of
public policy." Pierce v. Ortho Pharmaceutical Corp.,
84 N.J. 58, 73 (1980) ("[E]mployers will know that unless they act
contrary to public policy, they may discharge employees at will
for any reason.").
Woolley, unlike those statutory and judicial exceptions to
the employment-at-will doctrine, affirms the at-will presumption.
It recognizes that "as always, the employer and employee are free
to contract for terms and conditions of employment, such as
termination only 'for cause.'" Donovan & Reilly, supra,
22 Seton
Hall L. Rev. at 816; see also McQuitty v. General Dynamics Corp.,
204 N.J. Super. 514, 520 (App. Div. 1985) ("Woolley is not . . .
'an exception to the at-will doctrine' . . . but, rather, a
recognition of basic contract principles concerning acceptance of
unilateral contracts.").
As this Court in Woolley recognized in its discussion of New
Jersey's employment-at-will rule:
[T]he issue is not whether the rules
applicable to individual lifetime or
indefinite long-term employment contracts
should be changed, but rather whether a
correct understanding of the "underlying
interests involved" . . . in the relationship
between the employer and its workforce calls
for compliance by the employer with certain
rudimentary agreements voluntarily extended
to the employees.
[99 N.J. at 292 (quoting Pierce,
supra, 84 N.J. at 291).]
Consequently, under Woolley, if a plaintiff can prove that an employment manual containing job-security and termination procedures could reasonably be understood by an employee to create binding duties and obligations between the employer and its employees, the manual will constitute, in effect, a
unilateral offer to contract that an employee may accept through
continued employment. 99 N.J. at 309. Only in those
circumstances will an employment manual overcome the presumption
that the employment is at will.
We conclude that the matter should be remanded for a jury to determine whether an employee could reasonably expect that the Lipton manual provided job security, thereby creating an implied contract of employment. See Giudice v. Drew Chem. Corp., 210 N.J. Super. 32, 36 (App. Div.) (noting that Woolley claims tend to present questions of material fact, thereby precluding summary judgment), certif. denied, 104 N.J. 465 (1986). The Appellate Division, correctly ruling that "the terms and conditions of the employee manual create a factual question of an employment contract," reversed the trial court's summary judgment in favor of defendant. The court reasoned that a jury could find that the comprehensive nature of the job security provisions of the Lipton manual and its wide distribution created an implied contract of employment.
If the fact-finders determine that a contract exists, the jury must then determine whether under the employment manual Witkowski was guilty of "[s]tealing or unauthorized possession of Company property" by having the can of oil in his locker. See Cooper v. Singer, 118 N.J.L. 200, 202 (E. & A. 1937) (holding that whether foreman was fired because of employer's
dissatisfaction or some other reason was jury issue); Jorgensen
v. Pennsylvania R.R. Co.,
38 N.J. Super. 317, 338 (App. Div.
1955) (ruling that whether employee discharged for appropriating
company property was factual issue for jury), certif. denied,
20 N.J. 308 (1956); see also Touissant v. Blue Cross & Blue Shield,
292 N.W.2d 880, 896 (Mich. 1980) ("The jury is always permitted
to determine the employer's true reason for discharging the
employee."); 1 Lex K. Larson & Philip Borowsky, Unjust Dismissal
§ 9.02[3] (1993) ("Allowing the trier of fact to decide the issue
in cases where the reason for discharge is disputed will more
effectively balance the rights of employers and employees.").
As the Appellate Division properly noted in reversing the
trial court's grant of summary judgment, "plaintiff was charged
with a listed example, stealing or unauthorized possession of
Company property. Whether he was guilty of this violation is a
contested matter which cannot be determined on summary judgment."
If he is guilty of the alleged offense, then Lipton can terminate
him for cause.
In addition, we note that the Lipton manual contains a
purported disclaimer. Under Woolley an implied contract based on
an employment manual may be negated by the inclusion of a clear
and prominent disclaimer. 99 N.J. at 285; Nicosia, supra, __
N.J. at __ (slip op. at 11-18). However, in its motion for
summary judgment defendant did not ask the court to address the
adequacy of the manual's disclaimer: "Our position is that even
without a disclaimer, the manual in our case . . . does not meet
the standards of Woolley." The existence and enforceability of
that disclaimer was not adjudicated below. As defendant stated,
"there's a fact issue with respect to that [disclaimer] . . . we
understand that . . . and on summary judgment . . . do not ask
the Court to resolve the fact issue." As noted, the only issue
determined by the trial court was whether the Lipton manual
creates an implied employment contract. At the trial below the
issue whether the disclaimer is effective to overcome the
conditions of the manual will have to be resolved. We have
considered that question in the companion case of Nicosia, supra,
__ N.J. at __ (slip op. at 11-18), and that opinion should govern
the trial court's disposition of the "disclaimer" issue.
The Appellate Division judgment is affirmed and the matter remanded for further proceedings.
Chief Justice Wilentz and Justices Clifford, Pollock, Garibaldi, and Stein join in this opinion. Justice O'Hern did not participate.