dissenting.
1. I respectfully dissent. In Georgia, of course, employment relationships supported by no consideration other than the performance of duties and the payment of wages are terminable at will by either the employer or the employee, absent a controlling agreement specifying the terms of such employment.4 Absent such an agreement — either express or implied — employment for an indefinite period of time is presumed to be terminable at will.5 Hence, if the employment agreement between appellants and Elan was for an indefinite term and only provided for the payment of wages in exchange for the satisfactory performance of job duties, without any additional modifying terms, Elan was free to discharge appellants either with or without cause.
However, taking (as we must when reviewing the grant of a motion to dismiss)6 the complaint’s allegations as true, it is clear that the parties intended to modify the terms of their at-will employment relationship. As explained, it is established that indefinite contracts of employment are at-will.7 But the contract at issue here was not indefinite regarding appellants’ cooperation with the FDA. By promising not to discharge appellants if they cooperated with the FDA, Elan voluntarily surrendered its prerogative under the at-will doctrine to fire appellants for that specific conduct. Elan modified the parties’ at-will employment contract by eliminating appellants’ cooperation with an FDA investigation as a permissible ground for termination.
Elan urges that its oral promise could modify appellants’ at-will employment only if it specified a definite time period. Specifically, Elan argues that a promise not to fire appellants for, say, 18 months after cooperating with the FDA would be enforceable, but that a promise not to fire appellants for an indefinite period of time after cooperating with the FDA is unenforceable. I strongly disagree. Elan’s promise not to fire was not time-based. Rather, it was based *232upon specific conduct engaged in by appellants. Notably, the majority has cited no Georgia precedent addressing an employer’s promise not to fire for specified conduct. However, as noted recently by the Supreme Court of Utah (a state which, like Georgia, adheres to the at-will employment doctrine) in a factually analogous case:
At-will employment is a bundle of different privileges, any or all of which an employer can surrender through an oral agreement. In addition to employment for a specified employment term or a for-cause requirement for termination, an employer can, for example ... promise not to fire employees for a certain reason, thereby modifying the employee’s at-will status.8
The present appeal involves this exact situation — an employer’s promise not to fire for a specific and clearly identified reason. Appellants were concerned that cooperating with the FDA might cost them their jobs. To allay this fear, they obtained assurances from Elan that such conduct would not result in their termination. Taking the facts as alleged in the complaint as true, a reasonable finder of fact could conclude that the parties reached an implied-in-fact agreement that cooperating with the FDA would not be grounds for termination, thereby modifying the at-will terms of appellants’ employment.
Elan argues that treating its promise not to fire as a modification of appellants’ employment contracts would create an exception to the at-will doctrine that is not encompassed within the terms of OCGA § 34-7-1. However, as noted by a leading Georgia commentator:
The only significant exception to the “employment-at-will” doctrine ... applies where there is a contract, either express or implied, which convert [s] the relationship into [something other than employment-at-will].9
Accordingly, requiring Elan to honor its promise would forge no new ground in Georgia employment law, nor would it impose significant restrictions on Elan’s options under the at-will doctrine. Elan’s at-will prerogative to fire appellants for any reason other than their *233cooperation with the FDA— or, indeed, for no reason at all — would remain unaffected if its promise was enforced. As it is, however, Elan is being permitted to misuse its privileges under the at-will doctrine in order to breach its agreement with appellants. Having elected voluntarily to modify the terms of its employment agreement with appellants, Elan should not be allowed to claim the agreement as modified is void under the at-will doctrine.10
Accordingly, for the reasons discussed above, I believe the trial court erred by dismissing appellants’ claim for breach of the employment contract.
2. The majority correctly notes that the doctrine of promissory estoppel is generally inapplicable in an employment-at-will context. 11 Unless there has been an express or implied modification of the employment contract’s terms, the employment relationship is terminable at will, and promissory estoppel provides no recourse for a discharged at-will employee.
A different result, however, could occur in cases where the terms of employment are not entirely at-will. At least to the extent a finder of fact ultimately concluded that appellants’ employment contract was modified to eliminate cooperation with the FDA as grounds for termination, the precedent quoted above is inapplicable and appellants’ promissory estoppel claim may have merit. Because the viability of appellants’ promissory estoppel claim hinges on the merits of its claim for breach of contract, I believe the trial court acted prematurely in dismissing appellants’ claim for promissory estoppel.
3. Generally, fraud may not be predicated upon statements which are promissory in nature.12 However, a discharged employee may base a claim for fraud upon an employer’s promissory statement concerning some future act so long as there is a showing that at the time the promise was made, the employer had no intention of performing as agreed.13 Taking (as we must) the complaint’s allegations as true, it appears that at the time Elan agreed not to terminate appellants’ employment for cooperating with the FDA, it had no *234intention of honoring that agreement. Accordingly, under the facts alleged in the complaint, I believe appellants could be entitled to relief and the trial court erred in dismissing their claim for fraud and deceit.
Decided July 12, 2004 Reconsideration denied July 29, 2004. Orr & Orr, E. Wycliffe Orr, for appellants. Seyfarth & Shaw, Latonya S. Moore, John F. Meyers, for appellees.4. For all of the reasons stated above, I respectfully dissent from the majority’s ruling affirming the trial court’s dismissal of appellants’ complaint.
I am authorized to state that Justice Benham joins in this dissent.
OCGA § 34-7-1; Wimberly, Georgia Employment Law, § 1-6 (3rd ed. 2000); Hall v. Answering Suc., 161 Ga. App. 874 (289 SE2d 533) (1982).
Wimberly, supra at § 1-6.
Hickey v. Kostas Chiropractic Clinics, 259 Ga. App. 222 (576 SE2d 614) (2003); Moore v. BellSouth Mobility, 243 Ga. App. 674, 675 (534 SE2d 133) (2000).
OCGA§ 34-7-1; Jellico v. Effingham County, 221 Ga. App. 252 (471 SE2d 36) (1996).
Sanderson v. First Security Leasing Co., 844 P2d 303, 307 (Utah 1992) (emphasis supplied) (employer promised its employee, who had a brain tumor, that his job would be waiting for him when he returned from treatment, then terminated him from employment; the Utah Court held that the employer’s promise not to terminate due to illness was a modification of its right to fire at will). See also Lopez v. Kline, 953 P2d 304 (N.M. 1997) (same); Shaw v. Webster, 497 NW2d 686 (Neb. 1992) (oral representations may constitute a promise sufficient to create contractual terms which modify the at-will status of an employee).
Wimberly, supra at §§ 1-6, 1-7 (emphasis supplied).
The precedent relied upon by Elan does not demand a different result, as none of the cases involve an employment agreement that has been modified to eliminate specific conduct as grounds for termination. See Ford Clinic. v. Potter, 246 Ga. App. 320 (540 SE2d 275) (2000); Dong v. Shepeard Community Blood Center, 240 Ga. App. 137 (522 SE2d 720) (1999); Burton v. John Thurmond Constr. Co., 201 Ga. App. 10 (410 SE2d 137) (1991); Elliot v. Delta Air Lines, 116 Ga. App. 36 (156 SE2d 656) (1967). Additionally, all hut one of these cases address trial court rulings granting summary judgment or a directed verdict, which involves an entirely different standard of review than the one at issue in the present appeal. See Division 1, supra.
Johnson v. Metropolitan Atlanta Rapid Transit Authority, 207 Ga. App. 869 (429 SE2d 285) (1993).
Taylor v. Amisub, Inc., 186 Ga. App. 834 (368 SE2d 791) (1988).
Id., 186 Ga. App. at 836.