concurs in part and dissents in part.
As a threshold issue, we must determine the relationship between the parties. To argue that the employee was not discharged for just cause begs the question. That issue emerges only if the employee has a contract of employment, or as stated in the negative, only if he is not an employee-at-will.
I
Appellants argue that once the employer gives a reason for discharging an employee, the employer may not assert that the employment was terminable at will. Appellant cites no legal support for this argument.
Ohio continues to recognize the doctrine of employment-at-will. See, e.g., Henkel v. Educ. Research Council (1976), 45 Ohio St. 2d 249, 344 N.E. 2d 118; Mers v. Dispatch Printing Co. (1985), 19 Ohio St. 3d 100, 483 N.E.2d 150; Kelly v. Georgia-Pacific Corp. (1989), 46 Ohio St. 3d 134, 545 N.E.2d 1244; Karnes v. Doctors Hospital (1990), 51 Ohio St. 3d 139, 555 N.E.2d 280. I decline to hold that merely by explaining to the employee the reasons for discharge, the employer waives his right to assert the true nature of the employment relationship and is required to prove just cause for the termination. Such a rule would put an employer in an employment-at-will situation in a catch-22 situation: either explain to the employee why he is being terminated and prepare to prove just cause for the termination, or fire the employee without discussion and protect the right to assert employment-at-will. The first result in effect abolishes the employment-at-will doctrine; the second undercuts the ability of employers and employees to communicate regarding problems in the employment relationship. I would decline to take such an extreme position.
The first assignment of error should be overruled.
II
Appellants assert that the court erred in denying leave to file affidavits on the day of the summary judgment hearing. Affidavits in opposition to a motion must be filed at least one day before hearing on the motion. Civ. R. 6(D), Civ. R. 56(C).
Appellants' counsel offers two reasons for the delay: (1) he understood that counsel for appellee would not object to late filing, and (2) appellee filed its memorandum supporting summary judgment and affidavits more than 1 1/2 months late. This does not change the fact that appellants failed to obtain leave of the court to file their affidavits late. Appellants were given the full statutory time period in which to file such affidavits, measured from the day appellee filed its supporting memorandum and affidavits. Appellants had ample time in which to prepare and file such affidavits.
Appellants also argue that the court erred in failing to grant leave to file under Civ. R. 56(F), because no harm was caused by such filing.
"Should it appear from the affidavits of a party opposing the motion for summary judgment that he cannot for sufficient reasons stated present by affidavit facts essential to justify his opposition, the court may... order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just." Civ. R. 56(F).
In an affidavit filed with the court, counsel for appellants asserted that it was his understanding that counsel for appellee would not object to late filing. Appellants' counsel concedes in his brief that if he thought appellee's counsel would have objected, he would have timely filed such affidavits. The trial court did not err in failing to find this to be a sufficient reason for delay.
While all appellants claim prejudice by denial of leave to file, the ruling on this issue is irrelevant as to appellants Lambert and Duron, based on a finding of sufficient evidence in their depositions to create a jury question. As to appellant Mohr, overruling this assignment would affirm the summary judgment as to him, as absent this affidavit, there is no evidence in the record before the court as to representations made to him sufficient to create a jury question.
The second assignment of error should be overruled.
Ill, IV, V
Appellants' third assignment of error asserts that the employee handbook requires good cause for discharge. The employee handbook is one component to consider to determine if the employer has altered the employment-at-will relationship. Mers, 19 Ohio St. 3d 100, at syllabus 2. We therefore address this assignment in conjunction with appellants' assertions that cause for discharge was required by implied contract and promissory estoppel.
"The facts and circumstances surrounding an oral employment-at-will agreement, includ*146ing the character of the employment, custom, the course of dealing between the parties, company policy, or any other fact which may illuminate the question, can be considered by the trier of fact in order to determine the agreement's explicit and implicit terms concerning discharge." Mers, 19 Ohio St. 3d 100, at syllabus 2.1
In Mers the Ohio Supreme Court also recognized an exception to the employment-at-will doctrine based on promissory estoppel. The test in such cases is whether the employer should reasonably have expected its representation to be relied upon by the employee, and whether the expected action or forbearance actually resulted and was detrimental to the employee. Id. at syllabus 3; Kelly v. Georgia-Pacific Corp. 24, 46 Ohio St. 3d at 139. The reasonableness of such reliance is a question for the jury. Kelly at 140.
Appellants each signed an application which provided that his employment could be terminated at any time without prior notice. The employee handbook provided that during the first 30 days of employment, the employee could be terminated at any time in the supervisor's discretion. The handbook listed 54 infractions and the penalties for each, including possible discharge.
Appellant Robert Duron testified in his deposition that the plant supervisor told him:
"... The only way we would fire you is if you did something wrong, if you was sleeping on the job, drinking on the job, carrying a firearm on the premises, drinking, smoking pot, or just flat out, you know did something wrong, you know, real damaging to the company. Other than that, you can't get fired here."
Duron Deposition, p. 40.
"After my - well after the first night I did some dies for them and they saw the quality of it, and he said, Forget your probationary period, you're a permanent worker here." Duron Deposition, p. 42.
He further testified that based on all the information he received from his supervisors at Lexington, he believed that he would have to violate one of the rules in the handbook to be fired. Duron Deposition at p. 47.
Appellant Kenneth Lambert testified as follows regarding his discussion with the plant supervisor about the employee handbook:
"He said it was very important, read it and those were the reasons that we would be either fired or we would have reprimand put on us or disciplinary actions." Lambert Deposition, p. 15.
"From this rule book, I was told the only way I could be fired is that if one of these rules had been violated." Lambert Deposition, p. 48.
Based on this testimony, I cannot say that by construing the evidence in the light most favorable to appellants, reasonable minds could only come to one conclusion, that being adverse to the appellants. Considering all of the foregoing evidence, a jury question was created as to whether the employer made sufficient representations to alter the at-will relationship.
As to appellants' assertion of promissory estoppel, I find that reasonable minds could find that the employer should reasonably have expected the employees to rely on such representations of continuing employment absent a specified infraction. See Kelly, supra.
As to evidence relating to reliance on the employer's representation^ Appellant Zambert testified that he bought a car two days before his job terminated. Lambert Deposition at 43, 47. While he initially stated that he would have taken the job regardless of any representations regarding discharge, he later stated that he wasn't sure if he would have taken the Job or not because the handbook and representations were a relevant part of his hiring. Lambert Deposition at 54-57. Appellant Robert Duron was self-employed in maintenance work before working for Lexington; he ended this business when he went to Lexington because he needed a steady income. Duron Deposition at 9-10. When construed in a light most favorable to appellants, this is sufficient evidence relating to detrimental reliance to create a jury question.
The third, fourth, and fifth assignments of error should be sustained as to appellants Duron and Lambert. Because there is no evidence properly before the court as to representations to appellant Mohr (see assignment of error II), and as the employee handbook standing alone does not create an employment contract out of the employment-at-will relationship, these assignments of error should be overruled as to appellant Mohr.
VI
The employment application stated in pertinent part:
"Further I understand and agree that my employment is for no definite period and may, regardless of the date of payment of my wages and salary, be terminated at any time without any previous notice."
*147Appellant argues that the court erred in taking this language to mean that appellants agreed that their employment could be terminated without causa The language of this application is plain and unambiguous on its face, and we find that the trial court correctly interpreted the application.2
The sixth assignment of error should be overruled.
VII
I concur in the majority opinion as to assignment of error VII.
For the above-stated reasons, I would reverse the summary judgment as to appellants Lambert and Duron, and affirm the summary judgment as to appellant Mohr.
Mers has also been applied by the Ohio Supreme Court where the employee signed a statement specifying that the employment could be terminated without cause. See Karnes v. Doctors Hospital (1990), 51 Ohio St. 3d 139.
The interpretation of this agreement by the plain language does not prevent a finding that the employer's representations could have altered the effect of this provision, or that the employment-at-will relationship could have later been altered by such representations. See Mers, Kelly, and Karnes, supra.