Breen v. Dakota Gear & Joint Co., Inc.

SABERS, Justice

(dissenting).

I dissent for the reasons set forth in my dissent in Blote v. First Federal Sav. & Loan Ass’n, 422 N.W.2d 834, 838 (S.D.1988) and my writings in Johnson v. Kreiser’s, Inc., 433 N.W.2d 225, 228 (S.D.1988), French v. Dell Rapids Community Hospital, 432 N.W.2d 285, 292 (S.D.1988), and Larson v. Kreiser’s, Inc., 427 N.W.2d 833, 835 (S.D.1988). Larson held that it was improper to grant summary judgment against a twenty-year employee where specific promises raised jury questions concerning a definite employment contract. Breen was a ten-year employee who received pay increases from time to time, company benefits, including a profit sharing plan, but no formal evaluations of his performance. Genuine issues of material fact exist as to his attention to customers, working relationships with co-workers, abuse of sick leave, and whether “his allegedly deficient performance was ever discussed with him prior to his discharge.”

The majority rejects the “transplantation of the covenant of good faith and fair dealing into the foreign soil of the employment-*225at-will doctrine.” In my view there is no need for a transplant as the legislature planted the seed for the covenant of good faith by enacting SDCL 57A-1-203. The Restatement of Contracts also recognizes the obligation of good faith and fair dealing which arises in every contract. 2 Restatement (Second) Contracts § 205 (1979). It is the employment-at-will doctrine which is on foreign soil when it is superimposed onto an employment relationship of ten years where justified expectations of continued employment have arisen. Blote, supra. For these reasons, I would reverse summary judgment on breach of implied contract and wrongful termination of employment.