Toth v. Square D Company

Gregory, Chief Justice,

dissenting:

*11Because I adhere to my dissenting view in Small and because today the majority misconstrues the effect of its holding in the case, I dissent.

It has been a long-standing rule of law in this State that an employment contract for an indefinite period is terminable at will and may be terminated at any time for any reason or for no reason at all. See Todd v. S. C. Farm Bureau Mut. Ins. Co., 276 S. C. 284, 278 S. E. (2d) 607 (1981); Shealy v. Fowler, 182 S. C. 81, 188 S. E. 499 (1936). The only exception to this rule is the prohibition against discharge of an at-will employee in contravention of public policy. See Ludwick v. This Minute of Carolina, 287 S. C. 219, 337 S. E. (2d) 213 (1985); see also S. C. Code Ann. § 41-1-70 (Supp. 1988) (civil damages against employer for discharging employee complying with subpoena); § 41-1-80 (employer may not discharge employee for instituting workers’ compensation action). An at-will employment contract is enforceable as to duration only if additional consideration is given. Orsini v. Trojan Steel Corp., 219 S. C. 272, 64 S. E. (2d) 878 (1951); Weber v. Perry, 201 S. C. 8, 21 S. E. (2d) 193 (1942).

Small was an appeal from an order refusing the employer’s motion for directed verdict on the ground the evidence established only an at-will employment contract. The employee presented no evidence of a new agreement supported by consideration to incorporate the provisions of the handbook into the existing at-will contract, nor did she allege any additional consideration that would have rendered her otherwise terminable contract enforceable as to duration. Under our existing employment law, the employer’s motion for a directed verdict should have been granted. In holding to the contrary in Small, the majority in effect held that the mere existence of an employee handbook alters the nature of at-will employment. In my view, Small created a new contractual right to recover which should not be given retroactive effect.

Moreover, the unsettling effect of the Small decision on employer-employee relations in this state should not be further aggravated by extending Small retroactively. The unfairness of imposing a new contractual liability by law without notice is manifestly clear. For these reasons, I dissent.