(concurring in the result only) — Brian Fosmo contends that the trial court erred by dismissing his wrongful termination complaint on summary judgment. I concur in the result reached by the majority that summary judgment was appropriate.
The cause of action pleaded in Fosmo’s amended complaint is wrongful discharge in violation of public policy.13 The crux of Fosmo’s case is whether the terms of his reinstatement contract violate public policy.
“It is well settled that parties may incorporate into a contract any provision that is not illegal or against public *543policy.” Car Wash Enters., Inc. v. Kampanos, 74 Wn. App. 537, 543, 874 P.2d 868 (1994). Agreements that are against public policy are unenforceable. Simburg, Ketter, Sheppard & Purdy, L.L.P. v. Olshan, 97 Wn. App. 901, 909, 988 P.2d 467 (1999).
Fosmo alleges that there is a clear mandate of public policy in RCW 41.04.730. That section of the statute explains that participation or nonparticipation in the employee assistance program “shall not be a factor in any decision affecting an employee’s job security.” The employee assistance program was established to assist state employees “in resolving personal problems that impair their performance.” RCW 41.04.700(1). This was based on a legislative finding that “ [assisting employees in resolving personal problems that impair their performance will result in a more productive work force, better morale, reduced stress, reduced use of medical benefits, reduced absenteeism, lower turnover rates, and fewer accidents .. ..” RCW 41.04.700(1).
Using the word “shall,” RCW 41.04.730 expressly prohibits nonparticipation in the employee assistance program from being used as a factor in any decision affecting an employee’s job security. The statute literally read applies to all employment: initial hiring, continued employment, reinstatement, and rehiring. The legislature created no exception to RCW 41.04.730 for circumstances such as those presented in this case where an employee is reinstated. Arguably, such an exception would be consistent with the statute’s underlying policy. The majority opinion creates such an exception to the statute. However, such policy decisions are the province of the legislature, not this court.
Once reinstated, Fosmo was employed by the State and RCW 41.04.730 applied. The reinstatement contract at issue in this case made participation in the employee assistance program a condition of reinstatement and continued employment. This violated the public policy set forth in RCW 41.04.730 and this condition must be stricken from the agreement.
*544“When part of an agreement is illegal and thus unenforceable, but part is legal and enforceable, a court may enforce the legal part ‘only where the unenforceable portion is not an “essential part” of the consideration given to support the contract.’ ” Nolte v. City of Olympia, 96 Wn. App. 944, 958, 982 P.2d 659 (1999) (quoting Yakima County (W. Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 396, 858 P.2d 245 (1993)).
WSF agreed to rescind Fosmo’s termination and reinstate Fosmo with only a 30-day suspension. In return for his reinstatement, Fosmo agreed to participate in the Employee Advisory Service program. His agreement was the essential consideration given to support reinstatement. That consideration has failed. As a result, the entire reinstatement contract is unenforceable for lack of consideration.
If the entire contract is unenforceable, this court will restore the “parties to the relative positions they would have occupied if no contract had ever been made.” Willener v. Sweeting, 107 Wn.2d 388, 397, 730 P.2d 45 (1986).
We should therefore restore the parties to the respective positions they would have occupied if this reinstatement contract had not been exempted. Fosmo is restored to the status of a terminated employee.14
The State is therefore entitled to judgment as a matter of law.
Review denied at 149 Wn.2d 1033 (2003).
An employee claiming wrongful discharge in violation of public policy must prove the following four elements: (1) a clear mandate of public policy, (2) discouraging the conduct at issue would jeopardize that public policy, (3) the public-policy-linked conduct caused the termination, and (4) the employer is not able to offer an overriding justification for the termination. Sedlacek v. Hillis, 145 Wn.2d 379, 387, 36 P.3d 1014 (2001); Gardner v. Loomis Armored Inc., 128 Wn.2d 931, 941, 913 P.2d 377 (1996).
We note that Fosmo did not file a complaint for wrongful termination following his first termination.