|Legal Opinion: |
Text of Document: October 19, 1994
With respect to your question about certain conduct being implied incompetency, look at the following cases:
Curtis v. Reeves, 736 S.W.2d 108 (1987).
There the court, citing Little v. Federal Container Corp, 61 Tenn. App. 26, 452 S.W.2d 875 (1969), overturned the chancellor's decision that a custodian who was an independent contractor could not be dismissed for cause during the term of the contract. Said the court,
Generally, a contract of employment for an indefinite term is a contract at will and may be terminated by either party. [citations omitted] Whereas, a contract for a definite term may not be terminated before the end of the term except for cause [the court's emphasis] or by mutual agreement, unless the right to do so is reserved in the contract. 56 C.J.S. Master and Servant, section 30, p. 411.
An employer has the right to discharge an employee at any time for just cause. The fact that the employer bears with the incompetency or irregularities of such employee for a time does not estop the employer from discharging the employee for such incompetency if it continues. 61 Tenn. App. at 31-32, 452 S.W.2d at 877-78.
With respect to implied incompetency, citing 53 Am.Jur.2d, Mater and Servant, section 49 (1970), the Court said:
While an employer may discharge at will one employed for no definite term without incurring liability, the employer, in order to justify dismissal of one employed for a specific period, must be able to show a breach of the part of the employee of some express or implied provision of the contract of services. The implied provisions of such contract are violated when the servant does something inconsistent with the relation of master and servant or incompatible with the due and faithful performance of his duties.
Citing Kippen v. American Automatic typewriter Co., 324 F.2d 742 (9th Cir. 1963), the Court said this about the termination of a contract with an independent contractor on the grounds that the independent contractor used intoxicating liquor:
Since Kippen's appointment contained no express condition pertaining to the use of alcoholic liquor, the issue just stated calls for a determination of whether there was an implied condition of this kind, and, if so, its nature.
Then, citing Wyatt v. Brown, 42 S.W. 478, 481 (Tenn. Chan. App. 1897), the Court concluded that:
It needs no argument to justify a decision that inattention to duty is sufficient cause to discharge an employee .... It was his duty to look to the best interest of the business committed to his care. It was incumbent upon him to do all he reasonably could to advance the interest of that business, and to develop it. [the court's emphasis]
Finally, said the Court, citing 56 C.J.S., Master and Servant, section 42(a):
As a general proposition, any act of the servant which inures or has a tendency to injure his master's business, interests, or reputation will justify the dismissal of the servant. Actual loss is not essential; it is sufficient if, from the circumstances it appears that the master has been, or is likely to be, damaged by the acts of which complaint is made. The fact that the contract of employment authorizes the employer to terminate for certain specified causes does not necessarily prevent the employer from discharging the employee for a legal cause not so specified. [emphasis is mine].
Wyatt v. Brown (citation above):
The court upheld the dismissal of a hotel manager for negligence where the manager was absent during the peak periods when guests arrived, and for gambling and introducing gambling into, the hotel, even though the contract of employment said nothing about the hours the manager had to be at the hotel or gambling in the hotel.
Little v. Federal Container Corp (citation above):
Little had a contract with Federal Container, a term of which was that "You will be under the direct supervision of Mr. R.E. McCrory and he shall be the sole judge as to whether your work is satisfactory." Federal container subsequently fired Little even though R.E. McCrory found Little's work satisfactory. In upholding Federal Container's right to fire Little, the Court said:
It cannot be assumed the authority to sign employment contracts for defendant would be to Mr. Little the authority to sign a contract which would, in effect, deprive the defendant of all controls over the employee hires. Many situations could arise whereby the defendant would have the right to discharge the plaintiff for cause such as total incompetence, drunkenness, absenteeism, destruction of property, etc.. [emphasis is mine] It cannot be inferred the parties to this contract intended the defendant could not discharge the plaintiff for these reasons so long as Mr. McCrory said plaintiff's work was satisfactory.
The contract of employment contained no provisions relating to incompetence or what constituted the same or drunkenness, absenteeism, destruction of property, etc. These were obviously implied in the contract.
Glasgow v. Hood, et al., 57 S.W. 162 (1900):
The defendant was dismissed from his management of a girl's school. He sued for an accounting and damages, alleging, among other things, that he had a 15 year contract of employment. The chancellor upheld his dismissal, finding that he failed, "through incompetency or otherwise, to perform the duties which by implication, if not by express understanding, he assumed to perform and which duties the court finds that he failed to perform." The Court upheld the chancellor, parroting the chancellor's finding:
We are of the option, and so find, that the finding of facts contained in the second item of the above order of reference by the chancellor is fully sustained by the proof, to wit, that the 'discharge of complainant by defendants, or either of them, was justified on account of his failure through incompetency or otherwise, to perform the duties which by implication, if not by express undertaking, he assumed to perform, and which duties the court finds he failed to perform.'
I have searched in vain for any case law that requires a job description be a prerequisite for dismissal for incompetency. In fact, there are a number of cases involving dismissals in which the act or acts complained of would rarely, if ever, be prescribed or prohibited in a job description.
For example, in Thompson v. LeLand Police Department et al, 633 F.2d 1111 (1980), the City of Leland, Mississippi successfully defended itself against a police officer's charge that the city dismissed him for racial reasons. The officer could not pass basic course work at the police training academy and finished last in his class there, had difficulty reading and writing, was neglectful of his duties, including failing to patrol assigned areas and to relieve fellow officers as directed, sleeping on duty, and failing to enforce the law governing the sale of alcoholic beverages to minors. A city road superintendent's failure to maintain equipment, not accounting for overtime, refusing to obey orders, etc. was held to constitute ground for dismissal for incompetency in Palace v. Camden Township, 415 N.W.2d 47 (Minn. App. 1987). The Missouri Supreme court upheld the dismissal of a police officer for "general inefficiency" for failing to maintain an effective line inspection system with respect to his subordinate officers in McCallister v. Priest, 422 S.W.2d 650 (1968). The doing, or not doing, of many of the acts at issue in those (and many other) cases would not typically show up in a job description but are acts that could fairly be described as implied duties or responsibilities of the job.
Based on the above cases, incompetency will stand as a ground for dismissal without the support of a job description.
Let me know if I can help you further in this or any other matter.
Sidney D. Hemsley
Senior Law Consultant