373 Mass. 96, 364 N.E.2d 1251 (1977)
Orville E. Fortune worked as a salesman for The National Cash Register Company under a written employment contract that included a weekly salary and provisions for bonus payments on sales within his assigned territory.1 The territory assigned to Fortune included the account of First National Stores Inc., which he had covered for the preceding six years and from which he had secured prior orders, including a million dollar order in 1963.2
In 1968 Fortune corresponded with First National regarding NCR's new Class 5 cash register model and arranged a demonstration for company executives on October 4, 1968.3 On November 29, 1968, First National signed an order for 2,008 Class 5 machines to be delivered over four years at a purchase price of approximately five million dollars, listing Fortune as the salesman credited and showing a bonus credit amount of $92,079.99.4
Fortune received a termination notice on January 6, 1969, the first working day after the new year, though the notice was dated December 2, 1968.5 He remained with NCR in a sales support capacity to coordinate deliveries on the First National order.6 Fortune received seventy-five percent of the bonus commissions on machines delivered and installed while NCR paid the remaining twenty-five percent to a systems and installations employee.7
After nearly twenty-five years with the company, Fortune was asked to retire and, upon his refusal, was fired in June 1970, after which he received no further bonus payments on machines delivered to First National.8 Fortune brought suit against NCR in Superior Court.9 At the close of his case the trial judge submitted special verdicts to the jury on whether NCR had acted in bad faith in terminating the contract in 1968 and in firing Fortune in 1970.10 The jury answered both questions affirmatively and returned a verdict for Fortune in the amount of $45,649.62.11 The Appeals Court reversed the judgment, and the Supreme Judicial Court granted further appellate review.12
Whether the trial judge properly submitted the bad faith termination issue to the jury?13
An employment contract terminable at will contains an implied covenant of good faith and fair dealing, and a termination not made in good faith constitutes a breach of the contract.14
Yes. The contract reserved an explicit power to terminate without cause on written notice yet still contained the implied covenant.15 Applying the rule to the established facts shows Fortune received the termination notice the first working day after the five-million-dollar order was signed.16 He remained in a sales support role.17
He received only seventy-five percent of the bonus while a non-sales employee received the rest.18 He was fired after nearly twenty-five years when further deliveries would generate additional commissions.19 The timing and selective payment structure permitted the jury to find the termination was motivated by a desire to minimize bonus payments rather than legitimate business reasons.20
The trial judge properly submitted the bad faith termination issue to the jury.21
Whether the evidence was sufficient to support the jury's findings of bad faith termination?22
Where evidence is conflicting, a motion for directed verdict must be denied if any reasonable view of the evidence permits a rational inference in favor of the plaintiff.23
Yes. The established facts establish that the termination notice arrived the business day after the order.24 Fortune was kept on only to coordinate deliveries.25 The remaining twenty-five percent bonus went to a systems employee contrary to usual policy.26 Fortune received no commissions on post-June 1970 deliveries after his final firing.27 These facts support the jury's findings that both the 1968 termination and the 1970 firing were in bad faith to avoid paying the full bonus credit of $92,079.99.28
The evidence was sufficient to support the jury's findings of bad faith termination.29
Whether Fortune's failure to follow the contractual notice and grievance procedures barred recovery?30
The notice and grievance provisions applied only to disputes among salesmen or between a salesman and branch manager and were not applicable to termination grievances.31 Even if applicable, performance is excused when the employer would not have complied or when the law does not require useless acts.32
No. The established facts show Fortune had no dispute with his branch manager or with the systems employee Martin.33 The procedures were designed for inter-salesman bonus credit controversies rather than termination claims.34 The law does not require the employee to perform a useless act when the employer has already repudiated its obligations through bad faith conduct.35
Fortune's failure to follow the contractual notice and grievance procedures did not bar recovery.36