Appeal from the Circuit Court of Macoupin County; the Hon.
John W. Russell, Judge, presiding.
JUSTICE MORTHLAND DELIVERED THE OPINION OF THE COURT:
At issue in this appeal is the decision by the circuit court of Macoupin County to dismiss the plaintiff's tort action sounding in retaliatory discharge with prejudice. The court found that the lawsuit was barred due to a prior arbitration proceeding. An arbitrator had previously determined that the defendant did not violate the collective-bargaining agreement in force between it and the plaintiff's bargaining unit when it terminated the plaintiff's employment for an unexcused absence from work for two consecutive days. Plaintiff's subsequent suit sought damages for a discharge allegedly in retaliation for the exercise of rights under the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.4 et seq.).
While working as a roof bolter during his shift at the defendant's coal mine on August 6, 1985, plaintiff, a union employee, was injured when a rock fell and hit him about the helmet, shoulder, and arm. He was taken by ambulance to a hospital, where his injuries were diagnosed as a contusion to the head and left forearm as well as cervical strain. X rays of the cervical spine and forearm, however, revealed no fractures. A physician prescribed a muscle relaxant and pain killer, told the plaintiff to take the rest of the shift off, and instructed that he could return to work the next night.
Plaintiff did indeed work his shifts on August 7 and 8 but did not report on August 9, a Friday. Plaintiff called the defendant's answering machine prior to the start of that shift, stating he was having trouble with his neck and was going to have it checked. He also visited the mine site that day to pick up his check and to inquire about the procedure for having his neck examined further. On Monday, August 12, plaintiff again did not report to work, explaining in a telephone call to his employer's answering machine that he had been unable to get to a doctor on Friday, but was going to see one that day. Apparently, according to the evidence and testimony introduced at the arbitration hearing, plaintiff did go to a physician's office on August 12, but was examined only by a registered nurse, who wrote out a return-to-work slip to excuse the plaintiff for the two days he missed.
Plaintiff reported for his normal shift on August 13. On August 14, however, the plaintiff was informed that he was being suspended with intent to discharge. His employer charged him with two consecutive days of absence without consent or proper proof of illness, under article XXII(i)(4) of the collective-bargaining agreement, which states:
"When any Employee absents himself from his work for a period of two (2) consecutive days without the consent of the Employer, other than because of proven sickness, he may be discharged."
The plaintiff's union that same day filed a grievance on his behalf requesting immediate arbitration pursuant to the collective-bargaining agreement. The defendant later announced on August 16 it would proceed with the discharge.
The arbitration hearing was held August 21, 1985. The arbitrator considered that a discharge under article XXII(i)(4) raised these specific questions for resolution: whether the plaintiff was absent from work for two consecutive days, whether he had the consent of the company to be absent, and whether the plaintiff presented proper proof of illness. In making his written findings released August 30, 1985, the arbitrator concluded that the company did not violate article XXII(i)(4) when it discharged the plaintiff. Specifically, the arbitrator found that the plaintiff was absent from work for two consecutive days without consent and that he failed to provide proof he was unable to work on those two days. The arbitrator then ruled he had "no alternative" but to deny the grievance.
Plaintiff filed the one-count complaint that is the subject of this appeal on November 14, 1985. In that complaint, plaintiff alleges that he suffered a work-related injury on August 6, 1985, and that he convalesced at home, purportedly upon the advice of a physician, from August 9 until August 12. Plaintiff further alleges that, "subsequent" to incurring his injury, he inquired about and initiated a claim under the Workers' Compensation Act. (The record does not reveal any particulars about this claim, however, such as when it was actually filed and the ultimate disposition, if any.) Continuing, plaintiff's complaint contends he was discharged from his employment with the defendant "in retaliation for sustaining an injury for which he was entitled to benefits" and for pursuing his claim under the Act. Finally, in the same one-count complaint, plaintiff avers that the defendant interfered with, coerced, and discriminated or attempted to discriminate against him in connection with the exercise of his rights under the Act in violation of section 4(h) (Ill. Rev. Stat. 1985, ch. 48, par. 138.4(h)).
On January 17, 1986, the defendant presented its motion to dismiss the plaintiff's cause of action with prejudice pursuant to section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), arguing that the plaintiff was barred by the prior arbitration proceeding from litigating in court the cause of the discharge. The trial court agreed, opining that the prior arbitration covered the same issues the plaintiff sought to relitigate, and granted the motion on March 20, 1986. The plaintiff appeals.
• 1 We first take occasion to acknowledge that a cause of action sounding in retaliatory discharge for the exercise of rights under the Workers' Compensation Act is steeped in public policy. The tort was judicially announced in Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353, where our supreme court recognized the public policy embodied in passage of the Act, and the continued need to uphold that policy, by creating a cause of action for retaliatory discharge. The court in Kelsay reasoned that an "employer's otherwise absolute power to terminate an employee at will should [not] prevail when that power is exercised to prevent the employee from asserting his statutory rights under the Workmen's Compensation Act." (74 Ill.2d 172, 181, 384 N.E.2d 353, 357.) Noting that public policy would be seriously undermined if employers were permitted to discharge, or threaten to discharge, an employee who sought compensation under the Act, the court determined that punitive as well as compensatory damages should be recoverable to deter unscrupulous employers from engaging in such conduct. Thus the cause of action was deemed necessary even though not expressly provided for by the General Assembly.
Continued vitality of the cause of action lies in the protection of public policy, considered the "foundation" of the tort. (Palmateer v. International Harvester Co. (1981), 85 Ill.2d 124, 133, 421 N.E.2d 876, 880.) In order to state a cause of action for retaliatory discharge, an employee must show he was discharged in retaliation for his activities and that the discharge was in contravention of a clearly mandated public policy. 85 Ill.2d 124, 134, 421 N.E.2d 876, 881.
A significant expansion of the tort occurred with the supreme court's opinion in Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill.2d 143, 473 N.E.2d 1280, cert. denied (1985), 474 U.S. 909, 88 L.Ed.2d 243, 106 S.Ct. 278. The court in Midgett deemed there was no reason to afford the tort remedy to at-will employees while at the same time limiting unionized employees to contractual remedies under their collective-bargaining agreements. (105 Ill.2d 143, 150, 473 N.E.2d 1280, 1283-84.) The court reasoned that the public policy against retaliatory discharges to insure the protection of workers covered under the Act "applies with equal force in both situations" (105 Ill.2d 143, 150, 473 N.E.2d 1280, 1284), as should the attendant possibility of a punitive-damage award. Accordingly, it ...