dissenting.
I respectfully dissent from the majority’s holding that SIMCO did not abide with the termination procedures.
Substantial evidence does support the findings of the trial court that the employee handbook modified the employment relationship and that Lukoski was terminated for just cause. The trial court erred, however, in concluding that SIMCO did not follow the proper termination procedures. To the contrary, SIMCO did not breach any of the provisions in the employee handbook when it discharged Lukoski without a warning and suspension. The handbook explicitly states that, “there are violations which are so severe that immediate termination may be necessary.” (Emphasis added).
Overwhelming evidence was presented at trial to show that Lukowski’s violations of company policies were of the type to fall within the category of “so severe” that a warning and any suspension procedures were not required. See State ex rel. Goodmans Office Furnishings, Inc. v. Page & Wirtz Constr. Co., 102 N.M. 22, 24, 690 P.2d 1016, 1018 (1984). Generally, this evidence indicated that Lukowski had an overall attitude problem towards his employees, other managers and representatives of the Sandia Pueblo to the extent that SIMCO was in jeopardy of losing its bingo contract with the Pueblo; moreover, he was abusive towards the accountants, argued or fought publicly with customers, the assistant bingo manager, the construction supervisor and an admittance clerk; Lukoski also failed to install proper security measures and verification methods, and hired unqualified personnel. Further, testimony indicated that on several occasions, Walker, Lukoski’s supervisor, spoke to Lukoski about this attitude problem, and, in fact, interceded on Lukoski’s behalf when the Sandia Pueblo desired to discharge Lukoski.
As enumerated in the handbook, Lukoski’s violations included, “fighting on company property, refusal to obey reasonable orders of a supervisor, discourtesy to customers, and disobeying or ignoring established written or oral work rules or policies.” These are, and I again quote from the handbook, “violations which are so severe that immediate termination may be necessary.” (Emphasis added.) Therefore, the trial court was in error when it decided that SIMCO violated the termination procedures prescribed for “less serious” offenses in the handbook. Lukoski was not entitled to those termination procedures since his offenses were not of the “less serious” type. Under the circumstances in this case, the only process due Lukoski for the seriousness of his violations was immediate termination. Thus, there was no breach by SIMCO when it discharged him for just cause.
,The judgment of the district court should be reversed and this case remanded for dismissal.