dissenting:
The majority finds that the plaintiff’s complaint was sufficient to state a cause of action for retaliatory discharge under this court’s decision in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172. The complaint alleged that plaintiff was discharged because she had previously filed a claim for workers’ compensation against a former employer. Because I view the continuing expansion of this tort action to be imprudent, I am unable to join in the opinion of my colleagues.
This court has stated that the tort of retaliatory discharge “is an exception to the general rule that an ‘at-will’ employment is terminable at any time for any or no cause.” (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 128.) Yet, the rulings of this court in recent cases belie these words by enlarging the exception to the point where it now threatens to swallow the general rule.
Kelsay established that an employer’s “otherwise absolute power to terminate an employee at will” (74 Ill. 2d 172, 181) would not prevail if exercised to prevent an employee from asserting his statutory rights under the Workman’s Compensation Act (now known as Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par 138.1 et seq.)). In Kelsay, a workman’s compensation claim was filed against the discharging employer. Upon receiving notice of the suit, the defendant’s personnel manager informed plaintiff that Motorola had a policy of terminating the employment of employees who pursued such claims. (74 Ill. 2d 172, 179.) Under these facts, the court determined that an action for retaliatory discharge should be allowed in order to prevent employers from placing employees in the untenable position of choosing between their jobs or their remedies under the Act.
The court later expanded this cause of action in Palmateer. In that case, an at-will employee filed a complaint against his employer alleging that he was fired for supplying information to local law-enforcement officials concerning the possible criminal involvement of a fellow employee. A majority of this court found that the complaint stated a cause of action for retaliatory discharge, stating: “the foundation of the tort of retaliatory discharge lies in the protection of public policy, and there is a clear public policy favoring investigation and prosecution of criminal offenses.” (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 133.) Unlike the employee in Kelsay, however, the plaintiff in Palmateer was not asserting a statutory right. Therefore, I joined Chief Justice Ryan’s dissent, which cautioned against expanding the rule announced in Kelsay to encompass discharges in violation of what the judiciary may perceive to be the public policy of this State. As that dissent points out, the question of public policy is first and foremost a matter of legislative concern. Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 137 (Ryan, J. dissenting).
Most recently I disagreed with the court’s extension of this tort in Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, where the majority allowed employees covered by a collective-bargaining agreement to file an action in tort for retaliatory discharge without first exhausting or even initiating contractual remedies set forth in the collective-bargaining agreement.
Yet despite past disagreements over the scope of this tort, all its decisions, thus far, have recognized the existence of a cause of action for retaliatory discharge within a single employment relationship. In the instant case plaintiff did not file a claim for workers’ compensation against Impact Industries, the discharging employer. Rather, plaintiff had previously freely exercised her rights under the Workers’ Compensation Act while in the employ of Federal-Huber. It should also be noted that Federal-Huber and Impact Industries are unrelated business concerns. In acknowledging a cause of action against a subsequent employer who did nothing to interfere with plaintiff’s exercise of her rights under the Workers’ Compensation Act, the court has cast the tort of retaliatory discharge free from its traditional mooring and, in my view, onto a precarious course. Henceforth, a worker who has filed a claim under the Act may bring suit against any subsequent employer — regardless of the length of time that intervenes — if the employer considers the filing of that claim in making an employment decision. In so holding, the court has expanded the class of defendants who may now be compelled to defend a suit for retaliatory discharge and unlimited punitive damages.
Under the reasoning of the majority, it seems clear that if plaintiff had honestly answered the two questions on the application at issue here, and defendant had refused to hire her on that basis, the same public policy which the majority finds offended in the case at bar would be compromised. Would the court then recognize such a ‘non-hiring’ as a form of retaliation? Such an expansion is inevitable if the court proceeds along this uncharted course. If the concept of at-will employment is to retain any vitality, this court or the legislature must establish some boundaries.
For the foregoing reasons, I respectfully dissent.
RYAN, C.J., and UNDERWOOD, J., join in this dissent.