Plaintiff, John Galante, Jr., (the employee), instituted this action for wrongful discharge under N.J.S.A. 34:15-39.1 and the common law against the defendant Sandoz, Inc., (the employer), alleging that his termination was the result of his utilizing the benefits he was entitled to under the New Jersey's Workers Compensation Act (Act). The employer now brings this motion for summary judgment alleging that the employee was discharged because of excessive absenteeism and not because he sought workers compensation benefits. The employer contends that employee's failure to make a prima facie showing of discrimination entitles them to judgment as a matter of law. The employee has cross moved for a partial summary judgment on the ground that he was wrongfully discharged.
The facts of this motion are not in dispute insofar as its ripeness for summary disposition is concerned. The employee was hired as a mail route truck driver at will on August 25, 1980. On December 1, 1980, the employer instituted a new absence control policy to combat chronic absenteeism which is considered by the employer to be a major cause of low productivity.*fn1 On December 15, 1980 the employee stepped in an oil spill on the employer's premises and fell, injuring his back. The employee has filed for and received monetary benefits pursuant to the Workmen's Compensation Act.
Under the employer's absence control policy, absences are computed in terms of "instances". An instance is defined as the total period that an employee is out of work; so one day or five consecutive days will equal one instance. After seven instances an employee is put on probation. After nine instances he is
fired. The only absences for which there are exemptions for lost time are bereavement, vacations or jury duty.
Subsequent to the employee's back injury, he was out of work eleven instances before his termination in August of 1981. However, the employee was given notice after his seventh instance that he could be terminated upon his next absence. He was also informed at this time that the employer was aware that some of the absences were the product of a work related injury and that this would be taken into consideration. After ten instances, the employee was placed on probation for 90 days. He was suspended for two days for the eleventh absence which occurred during the probationary period and was then terminated. During this eight month period the employee missed a total of 44 days. Seventy-five percent or at least eight of the employee's eleven instances of absence from work were the result of the back injury sustained in the work related accident. The parties agree that the employee's dismissal was solely the result of absenteeism, which was deemed excessive under the new absence control policy of the employer.
The employee's argument is two-fold. First, a firing which is the result of absenteeism occasioned by a work related injury is a discriminatory firing under the recent decision in Lally v. Copygraphics, 173 N.J. Super. 162 (App.Div.), aff'd 85 N.J. 668 (1981). Second, the employee characterizes the failure of the absence control policy to excuse the absences of employees who take time off to recuperate from work related injuries as contrary to the public policy surrounding the enactment of the Workers' Compensation Law. He contends that under the present Workers' Compensation Law an employee is entitled to excused lost time from work as an actual benefit of workers' compensation, or as a benefit which is reasonably implied from the legislative scheme. The failure of the employer to include workers who take time off because of work related injuries within the exemptions under the absence control policy frustrates the injured worker in the exercise of his rights under the statute, and is violative of the public policy of the Act which is
to compensate workers for their work related injuries. See Daniello v. Machise Exp. Co., 119 N.J. Super. 20, aff'd 122 N.J. Super. 144 (App.Div.1973). Since the absence control policy, it is argued, contravenes the legislative intent of the Act, dismissal of the employee predicated on the absence control policy is either a fortiori discriminatory or a wrongful discharge.
The employer maintains that the employee's termination was solely a result of the neutral application of its absence control policy. Special consideration was given to this employee in that he was permitted two additional instances of absence above what was required for termination under the absence control policy. The absence control policy is a legitimate attempt on the part of an employer to control chronic absenteeism and does not violate public policy. As an employee at will the employer has a right to fire him for any reason that does not contravene public policy and it has not done so here. Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980).
For reasons elaborated on hereafter, plaintiff's dismissal was not unlawful, wrongful or discriminatory. The employer's absence control policy which includes as unexcused those absences occasioned by ...