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Jackson v. Board of Review

OPINION FILED FEBRUARY 22, 1985.

MARY JACKSON, APPELLEE,

v.

THE BOARD OF REVIEW OF THE DEPARTMENT OF LABOR ET AL., APPELLANTS.



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

JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 29, 1985.

Plaintiff, Mary Jackson, had been employed as a janitor by Commonwealth Edison Company since 1966. Her work hours were from 5 p.m. to 1 a.m. On May 5, 1982, she was discharged for drinking intoxicating liquor on the job. She filed a claim for unemployment compensation, which was denied by a claims adjudicator. Plaintiff appealed this denial, and a hearing was held before a referee, who affirmed the claims adjudicator's decision and held that the plaintiff was disqualified for benefits. This decision was appealed by the plaintiff to the Board of Review of the Department of Labor, which affirmed the decision of the referee. Plaintiff then filed her complaint in the circuit court of Cook County under the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3-101 et seq.) (the Administrative Review Law). The circuit court reversed the decision of the Board of Review. On appeal, the appellate court affirmed. (121 Ill. App.3d 963.) We granted the Board of Review's petition for leave to appeal.

The hearing before the referee was conducted in a very informal manner. Neither the plaintiff nor her employer was represented by counsel. The referee conducted the hearing, asking questions of the employer's representatives and of the plaintiff alternatively. Two persons were present representing the employer: Dorothy Paige, Supervisor of Industrial Relations, and William Allen, a staff assistant in the office building. The record of this informal interrogation disclosed the following. On the day plaintiff was terminated, an assistant supervisor named Myra found her at 7 p.m. with a half can of beer and a half bottle of vodka. Myra called a supervisor named Stanley, who told plaintiff he had no alternative but to terminate her employment because she had been warned about a week before by Maggie Ritchie, another supervisor, about drinking on the job. Shortly before Ritchie had talked to the plaintiff, Allen had also spoken to her about her drinking problem. She was told that if she was caught drinking, her employment would be terminated. For about a year before plaintiff's termination, Allen had been aware that plaintiff had been drinking on the job, but because of her years of service, she had been given warnings but had not been disciplined. Her immediate supervisor, Stanley, had given an informal report or memorandum to Allen. This document was not introduced into evidence, but it was referred to at length by the referee, who quoted from its contents in asking questions. The referee referred to specific entries on this memorandum. Although he stated the month and day the entries referred to, he did not state the year and, apparently, did not refer to these entries in chronological sequence. The memorandum stated that on February 10, the plaintiff was asleep in a chair with a beer can on the table. Stanley awakened her and told her to go home. The report stated there was "no sense discussing the situation at the moment. She was tipsy. We discussed the matter the next day." The report stated on April 6, "Found Mary in room 633 eating lunch drinking beer. Told her she was very close to being terminated." Under date of January 20 the report stated, "When I walked in she was sitting at the table with a can of beer in her hand and a six pack on the table."

Following her discharge, plaintiff filed a grievance with her union. In her letter to the union, she said she was discharged for drinking a can of beer on the job. At the hearing when she denied she was drinking on the job, the referee pointed out to her that, in her letter to the union, she did not deny the charge or assert that it was untrue.

On May 10, a few days after having been discharged, plaintiff entered a hospital and completed a 28-day treatment program for alcoholism. The employer had an alcoholism program, but plaintiff said that she did not contact a representative of that program before she was discharged. She admitted to the referee that she had had a drinking problem for quite some time.

Allen informed the referee that it is a violation of company policy to drink while on the job. He also stated that he held a meeting of the employees about every six months, at which meeting he informed the employees that "if anyone was caught drinking alcoholic beverages in the building, they would be terminated. No if, and or buts about it." Plaintiff admitted to the referee that she had heard some of these announcements. From the evidence presented to the referee, it appears the plaintiff had not been given a written warning concerning her drinking on the job, but there is evidence that she had been verbally warned on several occasions.

Plaintiff told the referee that "no one caught me drinking." She denied that on the day she was terminated she had a half can of beer and a half bottle of vodka. She stated she was collecting aluminum cans and on the day she was discharged she had a beer can and some soda cans. She also denied that she was drinking on the other occasions. She admitted that on one occasion she had had a beer with her lunch and was warned about having beer with her lunch, but insisted that on the occasion when she was discharged she had not been drinking. When the referee reminded her that the evidence was that on the day of her discharge she had a half can of beer and an open bottle of vodka, she stated that was a lie. The referee replied, "Well, that is a matter of credibility," and reminded her that she had not stated it was a lie in her letter to the union.

This case involves the construction of the provision of section 602(A) of the Unemployment Insurance Act (Ill. Rev. Stat. 1981, ch. 48, par. 432), which states: "An individual shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work * * *." (Emphasis added.) Before considering this provision of the statute in light of the facts of this case, we must point out that every justifiable discharge does not disqualify the discharged employee from receiving employment benefits under the Act. An employee's conduct may be such that the employer may properly discharge him. However, such conduct may not constitute "misconduct connected with his work" which disqualifies the employee from receiving unemployment benefits. See Annot., 26 A.L.R.3d 1356, 1358-60 (1969).

As noted above, the hearing before the referee was informal, neither party was represented by counsel, and the referee conducted the hearing, asking questions of one party and then the other. Also, as noted, much of the evidence against the plaintiff, as well as some of the plaintiff's evidence, was hearsay. Although the appellate court in this case noted that most of the evidence against the plaintiff was hearsay, it stated that, because of other facts, it need not be concerned with the hearsay problem.

In this court, plaintiff insists that we cannot consider any of the hearsay evidence presented by the employer. Plaintiff argues that "[o]nly the legally competent evidence is properly before this Court on review, and it is only upon this non-hearsay evidence that the Court's decision can be based." This is not an accurate statement of the law of this State. The cases cited by the plaintiff as authority for this statement are cases in which hearsay testimony was admitted over the objection of the opposing party, and thus are not apposite in this case, where no objections had been made. (See Grand Liquor Co. v. Department of Revenue (1977), 67 Ill.2d 195; Russell v. License Appeal Com. (1971), 133 Ill. App.2d 594.) Also, the cases relied upon by the appellate court in this case, in support of its statement that "[i]t has been repeatedly held that hearsay is `inadmissible in an administrative proceeding,'" were cases in which hearsay evidence was admitted over objections. See Nendza v. Board of Review (1982), 105 Ill. App.3d 437; Spaulding v. Howlett (1978), 59 Ill. App.3d 249.

In our case there were no objections to the hearsay evidence. It is well established that when hearsay evidence is admitted without an objection, it is to be considered and given its natural probative effect. (People v. Akis (1976), 63 Ill.2d 296; People v. Trefonas (1956), 9 Ill.2d 92; Town of Cicero v. Industrial Com. (1949), 404 Ill. 487; 1 Wigmore, Evidence sec. 18 (Tillers rev. ed. 1983).) An extensive annotation on this subject discloses that the overwhelming weight of authority supports the rule announced in these cases. See Annot., 79 A.L.R.2d 890 (1961).

Section 3-111(b) of the Code of Civil Procedure provides that technical errors in proceedings before an administrative agency, or its failure to observe technical rules of evidence, cannot constitute grounds for reversal. (Ill. Rev. Stat. 1981, ch. 110, par. 3-111(b).) This court has held that a similar provision contained in section 8 of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1939, ch. 120, par. 447) did not abrogate the fundamental rules of evidence, and held that the hearsay evidence rule was not eliminated from administrative proceedings by this provision. (Novicki v. Department of Finance (1940), 373 Ill. 342.) Thus the hearsay evidence rule applies to the administrative ...


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