dissenting:
I respectfully dissent, for I believe that the result reached in this case operates to undermine the public policy considerations inherent in our supreme court’s recognition of a cause of action for retaliatory discharge. In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, wherein such cause of action was recognized, the court also held that punitive damages may be awarded to the discharged employee under appropriate circumstances. The court noted that, in the absence of the deterrent effect of punitive damages, there would be little to dissuade an employer from wrongfully discharging an employee. (74 Ill. 2d 172, 186.) In so holding, the court joined those courts which have recognized that the situation of the employee and employer in today’s society is hardly equivalent, and that the “mutuality of obligations” rule permitting discharge of the employee at will for any or no cause is unduly harsh in the modern world. (See Smith v. Atlas Off-Shore Boat Service, Inc. (5th Cir. 1981), 653 F.2d 1057, 1060-63, and authorities cited therein.) In my view, the holdings in the instant case and the cases relied on in support of today’s result operate to take away a significant part of what our supreme court in Kelsay expressly gave, without restriction, to the employee discharged for exercising the rights expressly given him by legislative enactment. Nothing in Kelsay even remotely indicates that its protections are not to extend to employees covered by a collective bargaining agreement, and today’s decision has the irrational effect of immunizing from punitive damages the employer who fires a union member, while providing no such protection to the employer who fires a nonunion employee. Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 841-42, 439 N.E.2d 1053.
Moreover, in addition to these general policy considerations, specific analysis of the differing functions of a collective bargaining agreement and the tort remedy for retaliatory discharge underscores the erroneousness of the result reached by the majority herein. The issue before this court does not involve interpretation of a collective bargaining agreement, an appropriate matter for arbitration (Hendley v. Central of Georgia R.R. Co. (5th Cir. 1980), 609 F.2d 1146, 1151); rather, the question here is whether the terms of the agreement can preclude the pursuit of a wholly independent and judicially created remedy for retaliatory discharge. As observed by Justice Barry in his well-reasoned dissent in Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407, 407 N.E.2d 95 (Barry, J., dissenting), “in his complaint the plaintiff is not alleging that the discharge was wrongful in the sense that the terms of the collective bargaining agreement were violated. [Citations.] Rather, the plaintiff is seeking damages for his retaliatory discharge based upon his pursuing a workmen’s compensation claim. The plaintiff’s cause of action sounds not in contract, but in tort. It is based not upon violation of the terms of the collective bargaining agreement, but upon a violation of the public policy of the State of Illinois to compensate employees for work-related injury.” Here, plaintiff’s action is based upon an express public policy seeking to deter retaliatory discharge, and not upon anything granted to the employee under the terms of the collective bargaining agreement.
Finally, we should not ignore the reality that many collective bargaining agreements simply do not provide the discharged employee with protection comparable to that afforded by Kelsay. As one law review article dealing with Kelsay has noted, reliance on collective bargaining agreements alone under the circumstances presented here may deprive the employee of any recovery in some cases, as when a union is reluctant to arbitrate, or may severely limit the employee’s recovery. (Note, Kelsay v. Motorola, Inc. — Illinois Courts Welcome Retaliatory Discharge Suits Under the Workmen’s Compensation Act, 1980 U. Ill. L.F. 839, 852 & n.80, 853 & n.81.) Indeed, the potential for unfair diminution of the employee’s recovery is graphically illustrated by this case, where plaintiff’s full pursuit of his rights under the collective bargaining agreement yielded nothing better than reinstatement without retroactive pay or benefits. Such a result does nothing to provide the disincentive for retaliatory discharge inherent in Kelsay. Today’s decision, which eviscerates both the rights conferred on employees by Kelsay and the ability of the courts to give full force to legislative schemes designed for the protection of employees, is simply out of touch with the slow but steady evolution of the rights of employees in the latter half of this century.