dissenting:
I agree with the majority’s conclusion “that the manual was sufficient to create a binding contract between the parties” and that plaintiff’s “employment could not be terminated at will insofar as the manual provided otherwise.” (189 Ill. App. 3d at 454.) However, I disagree with the result reached by the majority.
The manual provides:
“J. Discipline
During an employee’s probationary period, that is, during his first ninety (90) days of employment, an employee may be discharged for any reason at the sole discretion of the employer. After an employee has completed the probationary period, such employee shall not be *** discharged *** without just cause, just cause to include but not be limited to the following: *** dishonesty or other misconduct in connection with work * * * >J
Under the clear terms of the manual, Jewel no longer had the unfettered discretion to discharge the plaintiff. The plaintiff could only be discharged for just cause, which included dishonesty or other misconduct in connection with work. Dishonesty means a disposition to defraud or deceive. (See Webster’s Third New International Dictionary 650 (1981).) Plainly, the record does not establish, and the majority does not conclude, that Jewel was entitled to a summary judgment on the basis that there was dishonesty as a matter of law. Thus, the issue here is whether plaintiff’s pertinent conduct constituted “other misconduct in connection with work” as a matter of law within the context of the relevant provision of the manual.
The manual does not define misconduct. However, it is reasonable to presume that terms in a manual concerning the same subject matter are governed by one spirit and policy. Also, terms in the same sentence of a manual should be considered and construed with reference to each other so that they may be given an intended harmonious effect. Here, under the subject matter of “Discipline” in the manual, the pertinent terms are “dishonesty or other misconduct.” Since the terms “dishonesty and other misconduct” are to be considered and construed with reference to each other, I believe that other misconduct, like dishonesty, as used in the manual means consciously and knowingly doing something wrong in connection with work as opposed to doing something mistakenly or inadvertently.
In addition, at the very least, the term “other misconduct” in the manual is ambiguous. Ambiguous contractual language is generally construed against the drafter of the language — in this case Jewel. In Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, the court considered the contractual rights of an employee that were created by her employer’s employee handbook. The court stated:
“A more difficult question is whether or not defendant complied with the provisions of the handbook. ***
*** The handbook states that an employee may be terminated without notice during the ‘initial probationary period’ (emphasis added), a period which ends ‘[a]t the end of 90 calendar days since employment.’ ***
***
Ambiguous contractual language is generally construed against the drafter of the language (Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105, 116; Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 2d 324, 333), and in the absence of evidence to the contrary we must conclude that the ‘designated probationary period’ does not divest an employee of rights vested at the end of the ‘initial probationary period.’ ” Duldulao, 115 Ill. 2d 482, 492-93, 505 N.E.2d 314, 319.
In the present case, in the absence of evidence to the contrary, the term “other misconduct” in the manual must be construed against Jewel and not, as the majority construes the term, in favor of Jewel. Moreover, the evidence aliunde supports plaintiff’s interpretation and not Jewel’s interpretation of the term other misconduct as it is used in the manual. A Jewel supervisor, Roy Mertens, testified in his deposition that intent to commit an act is required in order for conduct of an employee to constitute “misconduct.” The majority misdeems the import of the supervisor’s testimony because it construes the undefined term “other misconduct” in the manual against the plaintiff rather than against the drafter of the manual, Jewel. This is evident by the majority’s statement that “the testimony of Jewel’s supervisor that the disciplinary rules in the manual require a showing of ‘intent’ to be enforced is not sufficient to show that such a meaning was intended by the language of the manual.” 189 Ill. App. 3d at 455.
In addition, the majority concludes: “In view of plaintiff’s admission and the clear and unambiguous language of the employment manual regarding discharge for submission of incorrect time cards, we find no reason to disturb the finding of the trial court.” (189 Ill. App. 3d at 460.) The majority’s conclusion is based upon two unfounded premises.
First, plaintiff did not admit that his submission of an incorrect time card and signing the sign-in log showing an incorrect time constituted misconduct which would warrant his discharge pursuant to the provisions of the manual. Rather, plaintiff merely admitted that he made a mistake of one-half hour on his time card and sign-in log on a single occasion. According to plaintiff, his acts constituted a simple mistake and inadvertence which are not sufficient to discharge him under the terms of the manual. Secondly, it is simply not true that there is clear and unambiguous language in the employment manual regarding discharge for submission of incorrect time cards based on an admitted honest mistake. Instead, as the majority opinion itself demonstrates, the pertinent provision of the manual provides that plaintiff could only be discharged for cause, which would include dishonesty or other misconduct in connection with work. Merely making a mistake is not misconduct.
In the last paragraph of its opinion, the majority states that it agrees with the trial court that Jewel had the discretion to discharge plaintiff for filing a false time card. The fact is that the record does not establish that plaintiff filed a false time card within the meaning of dishonesty or other misconduct as used in the manual. Rather, the record establishes that plaintiff merely filed a time card with an honest mistake on it. If the majority is correct, virtually every mistake that is made in connection with one’s employment would amount to dishonesty or other misconduct, and it would give the employer the absolute discretion to discharge the employee regardless of the employee’s length of service. Thus, any job protection that longtime Jewel employees have under the manual would be illusory.
The majority’s opinion is great for management but, unfortunately, inimical to labor. I believe that the majority opinion is not merely wrong, it is an anachronism and unjust. In my opinion, with the advent and usage of employee handbooks and manuals which contain terms and conditions regarding discharge, the days when employers retained and discharged employees ad libitum are gone. (See Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314.) However, one would not believe that those days are gone by reading the majority opinion.
Accordingly, I would reverse the summary judgment in favor of Jewel and reverse the denial of plaintiff’s motion for summary judgment. I would also grant plaintiff’s motion for summary judgment and remand for further proceedings in the trial court.