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Hernandez v. Department of Labor





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Philip Fleischman, Judge, presiding.


This unemployment compensation case (Ill. Rev. Stat. 1977, ch. 48, par. 300 et seq.) resulted from a lawsuit filed pursuant to the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.). The dispute arose from a claim for benefits filed personally by the plaintiff, Andomaro Hernandez, with the assistance of an agency interpreter, on September 21, 1977. The claims adjudicator found plaintiff ineligible for benefits due to alleged work-related misconduct consisting of three consecutive unauthorized absences, and sent a letter written entirely in English to this effect to the plaintiff on October 21. The letter also purported to inform plaintiff of his right to appeal this determination within nine days of the date it was mailed.

Plaintiff and members of his household speak only Spanish. Accordingly he took this letter to a friend for translation. The friend completely mistranslated the letter, leaving plaintiff uninformed of its true content. Plaintiff personally visited the unemployment office on November 3, 1977, to investigate the delay in receiving benefits and at that time first learned of the ineligibility finding from an agency interpreter. He filed an appeal that same day. The Department of Labor's referee ruled on appeal that he lacked jurisdiction to review the adjudicator's determination because plaintiff had filed his appeal late. This ruling was timely appealed, but the decision was affirmed by the Board of Review of the Department of Labor (the Board). A timely complaint was filed in the circuit court of Cook County, which was dismissed on the Board's motion. Another timely appeal was taken to the appellate court. The appellate court reversed the circuit court and remanded the cause for a determination on the merits. 79 Ill. App.3d 635.

We granted the Board and Lab-Line Instruments, Inc. (Lab-Line), plaintiff's former employer, leave to appeal and consolidated the cases. We also granted the United Automobile, Aerospace and Agricultural Implement Workers of America leave to file an amicus curiae brief in support of the plaintiff. We reverse the appellate court.

The facts on which this appeal is to be judged are found in plaintiff's complaint and the testimony of the plaintiff during the proceedings before the referee. Lab-Line filed an answer to plaintiff's complaint which largely consisted of averments that it was "without knowledge sufficient to form a belief as to the truth of the allegations" in the complaint. The Board apparently did not file an answer to plaintiff's complaint or a record of the proceedings on review in the circuit court, but did move to dismiss the complaint. The parties also filed memoranda of law. The proceedings before the referee were made part of the record in the appellate court on motion of the Board.

This record shows that plaintiff filed his claim for benefits personally on September 21, 1977, and was assisted by a Spanish-speaking interpreter employed by the Department of Labor. Plaintiff at this time provided information contained on a standard agency benefit claim form. This form apparently was examined by the referee, but was not submitted on the record. No testimony regarding representations or advice provided plaintiff by the agency on September 21 appears on the record. The adjudicator thereafter ruled plaintiff ineligible and mailed the notice to that effect on October 21. No evidence was presented as to when it was received. The notice, which is not contained in the record, apparently stated that an appeal of the determination had to be taken within nine days of October 21. The referee stated on appeal that the plaintiff would have been allowed to appeal as late as October 31, because October 30 was a Sunday, making October 31 the first weekday after the nine-day appeal period had run.

The plaintiff testified at the hearing before the referee, through an interpreter, that immediately upon receiving the notice, he took it to a friend for translation. The friend only informed him that the letter said he was discharged for unauthorized absences, something he knew already. The plaintiff said he trusted the translation because his friend was attending school and knew more English than he did. Plaintiff had never attended school. When he did not receive certification forms, which must be filled out to receive benefits, he visited the unemployment office again on November 3, 12 days after the notice was mailed, and was informed in Spanish that he was ruled ineligible. He was advised of his appeal rights and filed one that same day.

Initially we note that no issue has been raised regarding information employers are required to provide to terminated employees (see, e.g., Dep't of Labor Reg. 14(a) (eff. Sept. 22, 1977)), section 703 of the Unemployment Insurance Act (Ill. Rev. Stat. 1977, ch. 48, par. 453), concepts of waiver or estoppel, the custom or practice of the agency, or the clarity of the notice itself. We therefore assume for purposes of this case that such issues are irrelevant.

The Illinois Constitution in relevant part states that "Circuit courts> shall have such power to review administrative action as provided by law." (Ill. Const. 1970, art. VI, sec. 9.) The Administrative Review Act, which is applicable (see Ill. Rev. Stat. 1977, ch. 48, par. 520; Ill. Rev. Stat. 1977, ch. 110, par. 265), states in pertinent part:

"If under the terms of the Act governing the procedure before an administrative agency an administrative decision has become final because of the failure to file any document in the nature of objections, protests, petition for hearing or application for administrative review within the time allowed by such Act, such decision shall not be subject to judicial review hereunder excepting only for the purpose of questioning the jurisdiction of the administrative agency over the person or subject matter." Ill. Rev. Stat. 1977, ch. 110, par. 265.

Plaintiff's appeal from the determination of ineligibility was governed by section 800 of the Unemployment Insurance Act, which, at that time, stated:

"Except as hereinafter provided, appeals from a claims adjudicator shall be taken to a Referee. * * * Unless the claimant or any other party entitled to notice of the claims adjudicator's `finding' or `determination,' as the case may be, or the Director, within seven days after the delivery of the claims adjudicator's notification of such `finding' or `determination,' or within nine days after such notification was mailed to his last known address, files an appeal therefrom, such `finding' or `determination' shall be final as to all parties given notice thereof." (Ill. Rev. Stat. 1977, ch. 48, par. 470.)

See also Dep't of Labor Reg. 23 (eff. May 14, 1977).

The nine-day limitation contained in section 800 is analogous to a statute of limitations provision for those parties "given notice thereof." (See Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill.2d 99; Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill.2d 61, and cases therein cited.) It is a mandatory rather than a directory provision because the consequence of noncompliance, that the claims adjudicator's determination be considered final, is clearly provided in the Act. (See Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill.2d 99, 106, citing Tuthill v. Rendelman (1944), 387 Ill. 321, 350, which in turn cited Clark v. Quick (1941), 377 Ill. 424, 430.) It is undisputed here that plaintiff was "given notice" by the agency, and he apparently received it in sufficient time to permit compliance ...

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