APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
S. TESCHNER, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The plaintiff appeals from an order of the circuit court denying his motion to stay proceedings brought by the plaintiff under the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.) and to compel arbitration of the dispute, which is the subject of the Administrative Review action.
The plaintiff is a fireman who was hired as such by the Addison Fire Protection District No. 1 in July of 1969. At the time he was hired the plaintiff and the District entered into an employment contract which provided in part that in the event of the discharge of the employee, such discharge "shall be subject to arbitration and the parties hereto agree that such dismissal or retention of the employee shall be final as determined by such arbitration."
In August of 1969 one month after the plaintiff signed the contract above referred to the Illinois legislature adopted section 16.13 of "An Act in relation to fire protection districts" (Ill. Rev. Stat. 1969, ch. 127 1/2, par. 37.13), which sets out the procedure for the removal or discharge of fire protection personnel and provides that where there is no board of fire commissioners the board of trustees of a fire protection district shall have the power to discharge or suspend fire department personnel for cause, after the filing of written charges and after a hearing. This was the statute under which the plaintiff brought his suit for administrative review.
The plaintiff was on the force until November, 1976, at which time he injured his ankle in a non-duty-related accident. Thereafter he did not report for work, but on November 15, 1976, he filed an application for a non-duty disability pension to be effective after February 6, 1977, the date of expiration of his sick leave. The president of the Firemen's Pension Fund wrote several letters to the plaintiff's physician asking for an evaluation of the plaintiff's disability. So far as the record indicates these medical evaluations were not furnished.
The plaintiff never reported for work after November 8, 1976. The board of trustees of the District wrote the plaintiff on June 1, 1977, asking him to meet with the fire chief. The plaintiff came in on June 8 and met with the fire chief and the fire chief at that time offered the plaintiff a position described by him in his testimony as "radio fire alarm operator." This position apparently consisted of receiving telephoned fire alarm reports, dispatching equipment and personnel and typing up reports.
The chief testified that after some conversation he told the plaintiff to report for work on June 13. The plaintiff did not report for work as ordered by the chief and the chief then prepared charges against the plaintiff, which he submitted to the Board of the District. On July 25, 1977, the Board held a hearing on the charges brought by the chief against the plaintiff for failure to report for duty. The plaintiff appeared with his counsel. At the hearing the plaintiff admitted he had been offered the position of radio fire alarm operator, and stated he had not accepted this position on the advice of his physician. He also admitted that he was regularly employed at that time by Lake County College as Fire Science Coordinator and was teaching at the college 12 hours a week. He testified, however, that he was physically unable to handle the job of radio fire alarm operator. Thereafter, at a regular meeting on August 10, 1977, the Board of Trustees voted to discharge the plaintiff from the force for failure to report for duty without reasonable grounds for such failure.
On August 31, 1977, the plaintiff made a written demand on the Board for arbitration of his discharge and on September 7 named his arbitrator. The Board did not respond. On September 23 the plaintiff filed his complaint for administrative review to which the Board made timely answer and moved to strike certain paragraphs of the complaint. On December 9, 1977, the plaintiff filed the motion described above to stay proceedings under the administrative review suit and to compel arbitration. The denial of the motion for a stay is the subject of this appeal.
The plaintiff contends that he was entitled to have the matter of his discharge arbitrated under the provisions of his July 1969 employment contract with the District and that since this contract antedated section 16.13, under which he was given a hearing and discharged, his discharge, without resort to arbitration, was illegal. He contends that he was still under the protection of the arbitration clause of his employment contract of July 1969, and invokes section 2(d) of the Uniform Arbitration Act (Ill. Rev. Stat. 1975, ch. 10, par. 102(d)), which reads as follows:
"Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this Section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay."
The plaintiff contends, therefore, that the trial court erred in denying the stay of proceedings under the Administrative Review Act. The District raises several points in answering the plaintiff's contention that his case should be decided under the arbitration agreement in his private employment contract and that, therefore, the administrative review proceedings must be stayed, pending resolution of the arbitration hearing. These contentions are as follows:
(1) The employment contract is no longer in effect because the plaintiff by his actions abandoned his employment and thus terminated the contract;
(2) The plaintiff waived arbitration under his employment contract by his conduct in appearing at and participating in a hearing under section 16.13 and by electing to pursue his remedy through administrative review procedure;
(3) A corollary of the second point is the contention raised at oral argument that the pertinent section of "An Act in relation to fire protection districts" was intended to and did supercede the original individual employment contract which carried arbitration provisions in connection with fire protection districts, by providing certain general procedural safeguards covering the removal or discharge of fire personnel. The District contends ...