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03/03/88 Richard Jackson, v. the Department of Labor

March 3, 1988

RICHARD JACKSON, PLAINTIFF-APPELLEE

v.

THE DEPARTMENT OF LABOR, BOARD OF REVIEW, DEFENDANT-APPELLANT (RAMCO HEAVY HAULERS, DEFENDANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

523 N.E.2d 5, 168 Ill. App. 3d 494, 119 Ill. Dec. 537 1988.IL.286

Appeal from the Circuit Court of Greene County; the Hon. Thomas G. Roady, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. GREEN, P.J., and McCULLOUGH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Plaintiff Richard Jackson worked for defendant Ramco Heavy Haulers in Clinton, Oklahoma, as an oil field swamper for drilling rigs from October 1, 1982, through November 3, 1982. On November 4, 1982, plaintiff was discharged after he failed to report to work for five consecutive days. On November 29, 1982, plaintiff filed a claim for unemployment compensation with the Illinois Department of Unemployment Insurance. On December 21, 1982, the claims adjudicator determined that plaintiff was ineligible to receive unemployment insurance benefits. The claims adjudicator found that plaintiff was discharged from his employment because he did not report in person to see if work was available and that the defendant's company policy required its employees to report in person daily. Further, the adjudicator found that plaintiff's conduct was within his control to avoid and that it adversely affected his employer's interest. Plaintiff filed a notice of reconsideration and appeal on December 29, 1982.

On January 11, 1983, a hearing was held before a referee at which the plaintiff appeared pro se and testified. The defendant employer did not appear. The plaintiff testified that he worked for defendant between October 1, 1982, and November 4, 1982, in Clinton, Oklahoma. Plaintiff was designated a swamper for moving drilling rigs. Plaintiff stated that he was hired to works "as needed" seven days a week. To find out if he was needed, plaintiff and others were required to appear at the Clinton office every morning at 7 a.m. Plaintiff further stated that if he had not been assigned to work by 9 a.m. he drove home. Plaintiff testified that he appeared every morning for the first three to four weeks of his employment with the defendant. Thereafter, he began to call to see if work was available to save the expense of driving. The plaintiff testified that it was not economically feasible for him to drive 35 miles to work every day and then be sent home because no work was available, so that was why he began to call the office to check on the availability of work. Plaintiff admitted he did not seek permission from his employer to telephone the office rather than appear in person, nor did he explain his problem to his employer. Plaintiff further testified that after calling in but failing to report to work for five consecutive days, he was advised by the paycheck disburser that he had been fired.

The defendant submitted a written statement in response to plaintiff's claim. The response stated that plaintiff would not show up for work and was fired one day later. It further stated that plaintiff was aware that he was supposed to report to work between 7 and 7:30 a.m. every morning and that this was company policy. The report also stated that plaintiff "would call in but never show up," when a job was called "you couldn't get a hold of him," and that he was not dependable. The statement was signed "Kathy Drier, Office," and was sent from defendant's Hennessey, Oklahoma, office.

After considering the evidence and the testimony presented at the administrative hearing, the referee found that the plaintiff was required to report to the defendant's jobsite each day between 7 and 7:30 a.m. to see if work was available but that on several occasions plaintiff called instead of reporting as required. The referee further found that plaintiff never talked with his employer about calling instead of reporting in person. The referee concluded that "[the] claimant knew that he was supposed to report in person to his job site each and every day at a specified hour for work. He failed to do as required and was discharged." Thus, the referee affirmed the determination of the claims adjudicator that plaintiff was discharged for work-related misconduct, and therefore, was disqualified to receive unemployment benefits.

On January 26, 1983, plaintiff appealed to the defendant Board of Review (Board). On June 16, 1983, the Board affirmed the referee's decision. Specifically, the Board found:

"The evidence established that the claimant did not report to work for five consecutive days despite the fact that he knew that the employer required him to do so. The claimant made no attempt to explain his problems to his supervisor and he knew, or would reasonably be expected to know that failing to report for work for five days would seriously jeopardize his job tenure."

Based on these findings the Board concluded that the plaintiff was discharged for misconduct connected with his work.

On July 13, 1983, the plaintiff filed a complaint for administrative review in the circuit court of Greene County. On September 12, 1983, defendant filed a motion for judicial notice of the stay in the United States Bankruptcy Court for the Western District of Oklahoma (case No. 83 -- 00529 -- B), resulting from an involuntary petition filed by defendant's creditors. The stay was allowed on September 12, 1983. The cause was then reactivated in 1987 and on July 15, 1987, a hearing was held on plaintiff's complaint for administrative review. At that time, plaintiff filed an "Affidavit of Witness" in open court and moved orally to amend his complaint to add newly discovered evidence as a basis for remand to the Illinois Department of Unemployment Insurance.

The affidavit was from Marvin Bailey, a former employee of defendant who worked out of the Clinton, Oklahoma, office from approximately April 1, 1981, through December 31, 1982. The affiant stated that defendant had offices at Clinton, Oklahoma, and at Hennessey, Oklahoma, 150 miles from Clinton. The affiant stated that Kathy Drier was a secretary for defendant at the Hennessey, Oklahoma, office and he could recall no occasion on which she was assigned to the Clinton, Oklahoma, office during December 1981 through December 31, 1982. The affiant further stated that during the last six months of 1982 defendant "idled practically all of its oil well department because of slack work," and rather than lay off employees, the defendant assigned work as it became available. He denied that defendant had a stated employment policy that all employees appear personally at the Clinton office each morning for assignment. The ...


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