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If an employer discharges an employee because the employee made a claim for unemployment compensation during a period when he was not working and earning income, the discharge will constitute a violation of public policy and will support a tort claim for wrongful discharge.
Between 1983 and 1992, Chester Highhouse sporadically drove buses for Avery Transportation, which was owned by Frank Avery and his son, Lyle Avery. On or about January 16, 1992, Lyle Avery advised Highhouse that all Avery drivers were scheduled to have a federally mandated drug test and that he could be tested at his own expense, if he wished, but that his services would not be used by Avery except in emergency situations. When Highhouse inquired about his failure to receive the bonus received by other drivers at Christmas, he was told that his unemployment check was his bonus. Thereafter, Highhouse did not take the drug test. His employer contends that he thereby terminated his employment voluntarily. Highhouse contended, however, that he understood his conversation with Lyle Avery to mean that his employment had been terminated and that the cost of the test would be waste of money. He arguesd that he was thereby discharged, either actually or constructively, by Avery. Highhouse filed a wrongful discharge action against Avery Transportation. The trial court granted summary judgment in Avery Transportation’s favor.
Was there evidence to support Highhouse’s claim that he was wrongfully discharged in violation of public policy, thus, the grant of summary judgment was improper?
The court reversed and remanded because a jury could find that Highhouse was constructively discharged from his employment as a bus driver. There was evidence that Avery Transportation denied Highhouse a Christmas bonus and told him that he would only be assigned a trip in a "dire emergency," because Avery Transportation was displeased with Highhouse’s receipt of unemployment compensation during the off-season. There was no evidence to support Highhouse’s claim based on an oral agreement because Highhouse admitted that there were no guarantees of employment. However, there was evidence to support Highhouse’s claim that he was wrongfully discharged in violation of public policy. The court found that if Avery Transportation discharged Highhouse because he had made a claim for unemployment compensation, the discharge would constitute a violation of public policy and would support a tort claim for wrongful discharge. Highhouse’s tort claim was not pre-empted by the unemployment compensation administrative process