Thorup

This is an appeal from the denial of a petition to compel arbitration filed within a wrongful termination action. The appeal raises the question of arbitrability of the employment dispute: specifically, whether the employer waived its right to arbitrate by firing the employee before seeking arbitration.

Facts

Plaintiif Robert Thorup had been an account executive with Dean Witter Reynolds, Inc. since 1967. In October 1982 Thorup made an error in a customer’s account which resulted in a loss of $10,975. (Thorup executed a sell order when the customer had requested a purchase of a quasi-commodities contract.) Dean Witter reimbursed the customer for his loss and then sought repayment from Thorup.

On January 27, 1983, after negotiations had reached an impasse, Dean Witter fired Thorup. Two months later Dean Witter sought arbitration of Thorup’s responsibility for reimbursing the $10,975 customer loss.

Thorup’s employment contract was a standardized agreement required by the rules of the New York Stock Exchange. It contained the following arbitration clause: “I agree that any controversy between me and any member or member organization or affiliate or subsidiary thereof…