APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
532 N.E.2d 294, 177 Ill. App. 3d 276, 126 Ill. Dec. 609 1988.IL.1733
Appeal from the Circuit Court of Cook County; the Hon. Lucia T. Thomas, Judge, presiding.
JUSTICE LINN delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN
Plaintiff, Shirley London, filed a pro se complaint for administrative review (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.) seeking to reverse a decision by the Board of Review of the Department of Employment Security (hereinafter board) that she was ineligible to receive unemployment benefits because she engaged in misconduct connected with her work, namely, tardiness. (Ill. Rev. Stat. 1985, ch. 48, par. 432.) The circuit court of Cook County reversed the board's decision and the board has appealed, contending that it properly determined that plaintiff was disqualified from receiving unemployment benefits due to misconduct. Plaintiff has failed to file a brief, and we therefore consider this appeal pursuant to the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131-33, 345 N.E.2d 493. We hold that plaintiff's tardiness by several minutes due to road construction on the Dan Ryan Expressway on the day she was discharged did not disqualify her from receiving unemployment benefits, and we therefore affirm the judgment of the circuit court.
Plaintiff was employed as a computer operator by the Sewing Machine Exchange in Schiller Park, Illinois, from January 1979 until April 16, 1986, the day she was discharged. Although most of plaintiff's co-workers reported to work on or before 8 a.m., the employer gave plaintiff special permission to report to work at a later hour because her family had only one car and she needed to transport her husband to work in Indiana and her daughter to school before she drove to work each morning. According to the employer, plaintiff's permission to arrive late was withdrawn on May 28, 1985, after a comptroller complained that the company could not function properly unless plaintiff was punctual. The record on appeal contains a written warning to plaintiff dated May 28, 1985, which provided that continued tardiness would result in suspension after three transgressions and, eventually, dismissal. On February 27, 1986, plaintiff was told orally that she had until March 31, 1986, to try to make the necessary travel and transportation arrangements to insure her arrival at 8 a.m. The employer stressed that the company needed her to be present at 8 a.m. because the business was dependent upon her critical position as a computer operator. Plaintiff then made efforts to improve her punctuality and arrived at work between 8:20 and 8:30 a.m. During the administrative hearing, the employer admitted that he never specifically told plaintiff that her permission to arrive late had been rescinded. However, when several successive comptrollers complained that plaintiff's tardiness was "screwing up the operations," the employer circulated a memorandum stating that the employees were required to report to work by 8 a.m.
On April 10, 1986, plaintiff telephoned the employer and stated that she needed to attend to a personal matter and that she should be in at noon. She telephoned several more times and finally indicated that she would be unable to report to work that day. During the administrative hearing, plaintiff testified that "someone" was in jail and that she needed to attend to that matter.
When plaintiff returned to work on April 11, she was suspended for three days. The written memorandum concerning her suspension disclosed that she was suspended because (1) she was absent during a critical time of the month without prior notice, (2) she was not punctual, (3) she had excessive personal telephone calls, and (4) she conducted a jewelry business during her working hours which interfered with the performance of her duties. The memorandum warned that she would be suspended again or discharged without further notice if the problems were not remedied.
On April 15, the employer decided to discharge plaintiff on April 16 if she arrived after 8 a.m. When plaintiff reported to work no later than 8:06 a.m. on April 16, she was immediately discharged. During the administrative hearing, plaintiff testified that she had left home early enough to report to work by 8 a.m., but that she was delayed by the traffic and road construction on the Dan Ryan Expressway before exiting the expressway at 67th Street. When asked to state the cause of plaintiff's discharge, the employer responded, "Her continuous tardiness and not being on time when we had done everything in the world to try and get her to start coming in on time."
The board adopted and affirmed the referee's decision. The board found that plaintiff was discharged for being tardy after a warning and a suspension for tardiness, and that, although she formerly had been on a flexible time schedule, she was advised prior to her discharge that she would be required to be at work at a specific time. The board concluded that plaintiff had willfully disregarded her employer's interests, that her final transgression was without good cause and without notification to the employer, and that this constituted disqualifying misconduct. Plaintiff then sought judicial review.
In reversing the board's decision, the circuit court found that there was no willful failure to abide by the employer's rules because plaintiff had made every effort to notify the employer of the emergency on April 10. The board has appealed. We agree with the result reached by the circuit court but for different reasons. See Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286, 527 N.E.2d 303.
In an unemployment insurance case, the board is the trier of fact and its factual findings are treated as prima facie true and correct. (Jackson v. Board of Review (1985), 105 Ill. 2d 501, 510, 513, 475 N.E.2d 879; Barron v. Ward (1987), 165 Ill. App. 3d 653, 659, 517 N.E.2d 591; Pesce v. Board of Review (1987), 161 Ill. App. 3d 879, 881, 515 N.E.2d 849; Zbiegien v. Department of Labor (1987), 156 Ill. App. 3d 395, 399, 510 N.E.2d 422; Gee v. Board of Review (1985), 136 Ill. App. 3d 889, 895, 483 N.E.2d 1025; Ill. Rev. Stat. 1985, ch. 110, par. 3-110.) Our function with respect to the board's factual findings is to determine whether they were against the manifest weight of the evidence. (Jackson v. Board of Review (1985), 105 Ill. 2d 501, 513, 475 N.E.2d 879; Kelley v. Department of Labor (1987), 160 Ill. App. 3d 958, 961-62, 513 N.E.2d 988.) However, the same deference is not accorded with respect to legal questions such as the erroneous construction of a statute. Northern Trust Co. v. Bernardi (1987), 115 Ill. 2d 354, 365, 504 N.E.2d 89; Barron v. Ward (1987), 165 Ill. App. 3d 653, 659, 517 N.E.2d 591; Pesce v. Board of Review (1987), 161 Ill. App. 3d 879, 881, 515 N.E.2d 849; Zbiegien v. Department of Labor (1987), 156 Ill. App. 3d 395, 399, 510 N.E.2d 422; Flex v. Department of Labor (1984), 125 Ill. App. 3d 1021, 1023, 466 N.E.2d 1050.
In the case at bar, the board found that plaintiff was discharged for tardiness after a warning and a suspension. This factual finding did not contravene the manifest weight of the evidence because the employer specifically testified that tardiness was the reason plaintiff was discharged. However, the board then made a legal Conclusion that plaintiff's tardy arrival on April 16 disqualified her from receiving unemployment insurance benefits. Therefore, we must determine whether plaintiff's tardy ...