Cirino v. Christian Timbers, Inc. , 116 Ohio App. 3d 818 ( 1996 )

I must respectfully dissent from the majority's conclusion that appellee's employment could have been terminated without terminating the employment agreement, therefore making any postemployment dispute involving the interpretation of the agreement subject to arbitration.

The majority concludes that the sole issue before this court is whether terminating employment and terminating the employment agreement are the same under the agreement. However, I find that the sole issue presented by appellant for our review is whether a particular controversy is arbitrable under the arbitration provision of the employment agreement entered into between appellant and appellee.

Appellant entered into an employment agreement with appellee requiring arbitration of disputes arising out of, or relating to, the agreement. The arbitration clause set forth in the employment agreement states:

"TEN. Arbitration. (A) Except as provided in Article TEN (B) hereof, all controversies, claims, disputes and matters in question, arising out of, or relating to, this Agreement or the breach thereof, or the relations between the parties, shall be decided by arbitration * * *.

"(B) The right of [appellant] to terminate this Agreement shall not be subject to arbitration."

The issue of "whether a controversy is arbitrable under the provisions of a contract is a question for the court to decide upon examination of the contract." Sexton v. Kidder Peabody Co., Inc. (March 7, 1996), Cuyahoga App. No. 69093, unreported, 1996 WL 100855, citing Divine Constr. Co. v. Ohio-American WaterCo. (1991), 75 Ohio App. 3d 311, 599 N.E.2d 388. A court will enforce an arbitration clause unless it is firmly convinced that the clause is inapplicable to the dispute or issue in question.Sexton, supra, citing Ervin v. Am. Funding Corp. (1993), 89 Ohio App. 3d 519, 625 N.E.2d 635.

In the case sub judice, appellant contends that the trial court erred in refusing to permit the controversy to be settled through arbitration. In particular, appellant contends that appellee's claims with regard to his probationary period, as well as his claim for payment of his annual raise, have nothing to do with the agreement or its termination. Furthermore, the claims are completely outside of the agreement and should, as a result, be governed by Paragraph Ten (A) of the agreement allowing the dispute to be settled through arbitration.

The arbitration clause in the present case clearly states that where appellant asserts its right to terminate the employment agreement, the termination is not subject to arbitration. Clearly, appellant chose to exercise its right to terminate appellee's employment agreement when it terminated appellee on May 10, 1995. Subsequently, appellee filed a complaint against appellant asserting that appellant, in bad faith, wrongfully terminated his employment. This claim, as well as appellee's claim that he was unable to complete his sixty-day probationary period, goes directly to the issue of wrongful termination.

Thus, in accordance with the exclusion set forth in Section Ten (B) of the employment agreement, I find that the trial court appropriately denied appellant's motion to compel arbitration and proceedings pending arbitration.

For the foregoing reasons, I would affirm the judgment of the trial court.