Appeal by plaintiff from Collier, Judge. Order entered 29 September 1980 in Superior Court. Forsyth County. Heard in the Court of Appeals 20 October 1981.
Clark, Judge. Judges Hedrick and Martin (Harry C.) concur.
It is a settled rule of law in North Carolina and other jurisdictions that employment for an indefinite term is regarded as an employment at will which may be terminated at any time by either party. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971); Tuttle v. Lumber Co., 263 N.C. 216, 139 S.E.2d 249 (1964); Freeman v. Hardee's Food Systems, 3 N.C. App. 435, 165 S.E.2d 39 (1969); 9 Williston on Contracts § 1017 (3d ed. 1967); 3A Corbin Contracts § 684 (1960); Annot., 62 A.L.R. 3d 271 (1975); and see cases collected in Annot., 161 A.L.R. 706 (1946); Annot., 100 A.L.R. 834 (1936), and, Annot., 11 A.L.R. 469 (1921).
In our opinion the questions on appeal are determined by whether this rule of law controls the case sub judge. First, though the materials offered by the defendant University to support its motion for summary judgment tend to show his performance as Golf Coach was not satisfactory, the materials offered by plaintiff are conflicting. Whether there was cause for termination as Golf Coach would be a material issue of fact, and we eliminate this issue in determining whether the trial court erred in allowing summary judgment. Second, though plaintiff was employed as Golf Coach and Associate Athletic Director, the record on appeal contains little or nothing relative to any duties expected or performed as Associate Athletic Director. It is unquestioned that defendant offered to retain plaintiff in the position of Associate
Athletic Director and assign him to perform other duties in the athletic program, but plaintiff took the position that he was employed as Golf Coach and rejected the offer. In determining the question before us, we make the assumption that plaintiff was employed as Golf Coach and defendant discharged him from this position.
Perhaps because of the sometimes harsh results, the courts have occasionally relaxed the general rule permitting either party to an employment contract for an indefinite term to terminate it at will, with or without cause. See Annot., 62 A.L.R. 3d 271 (1975); 53 Am. Jur. 2d Master & Servant § 27 (1970). In Still v. Lance, supra, although the court upheld the school board's termination of a teacher without cause, we find the following dicta: "Where, however, there is a business usage, or other circumstance, appearing on the record, or of which the court may take judicial notice, which shows that, at the time the parties contracted, they intended the employment to continue through a fixed term, the contract cannot be terminated at an earlier period except for cause or by mutual consent." Id. at 259, 182 S.E.2d at 406-407.
Plaintiff, relying on this dicta, makes the argument that the attendant circumstances reveal the intention of the parties that the contract of employment be for a long time, or for a reasonable term, not less than six years. He relies on statements made by Athletic Director Hooks and President Scales when he was hired which indicated that they expected him to be with the University and develop the golf program for a substantial period. Plaintiff also claims it was the custom and usage for golf coaches to serve for long terms, that Jesse Haddock was the golf coach at the University for 17 years, and that according to records kept by the Golf Coaches Association, other coaches held their jobs for long terms. We find, however, that this evidence at best reveals the hope by the parties that plaintiff would perform his duties satisfactorily and maintain a good golf program but falls far short of showing the intention of the parties for a fixed term of employment. Nor does the statement of Dr. Scales that "employees are not customarily dismissed at random without reason," show a custom or usage known to both parties at the time of employment so as to infer or indicate a specific term.
Plaintiff relies on a manual entitled "Wake Forest University Personnel Policies and Regulations" to support his argument that
he was a "permanent" employee and could not be dismissed without cause. The manual included the following provision: "As a new employee, you serve a probationary period of three months to allow for job adjustment. At the end of this time if your performance has been satisfactory, you become a permanent employee. You then become eligible to participate in the University insurance program and you receive an employee identification card."
We assume that the manual applies to all employees of the University, including the Golf Coach and Associate Athletic Director, and that plaintiff, having served in that position for 16 months, was a "permanent" employee at the time of his termination. Dr. Scales testified that the distinction between probationary and permanent employees under the manual was that permanent employees become eligible for insurance and receive an identification card. But assuming that plaintiff was a "permanent" employee in a general sense, it is settled in North Carolina that "permanent" employment means a position of some permanence as contrasted with a temporary employment, and ordinarily, where there is no additional expression as to duration, a contract for permanent employment implies an indefinite general hiring terminable at will. Howell v. Credit Corp., 238 N.C. 442, 78 S.E.2d 146 (1953); Malever v. Jewelry Co., 223 N.C. 148, 25 S.E.2d 436 (1943); Freeman v. Hardee's Food Systems, supra.
Plaintiff also makes the argument that the ruling of the Employment Security Commission that plaintiff was entitled to unemployment benefits is res judicata in this action, because an employee is disqualified for benefits if he (1) left work voluntarily without good cause attributable to the employer, or if he (2) ...