Appeal from the Circuit Court of Lake County. No. 93-MR-122. Honorable Bernard E. Drew, Jr., Judge Presiding.
Released for Publication March 2, 1995.
The Honorable Justice Hutchinson delivered the opinion of the court: McLAREN, P.j., and Colwell, J., concur.
The opinion of the court was delivered by: Hutchinson
JUSTICE HUTCHINSON delivered the opinion of the court:
Plaintiff, Odean Garner, Sr., appeals the order of the circuit court of Lake County affirming the corrected supplemental decision (decision) of the defendants, the Department of Employment Security Board of Review et al. On November 8, 1991, a referee determined plaintiff was terminated for misconduct and was therefore ineligible for unemployment benefits under the Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West 1992)). Defendants affirmed this determination on February 26, 1993. Plaintiff appealed under theAdministrative Review Law (735 ILCS 5/3-101 et seq. (West 1992)). The circuit court affirmed defendants' decision on November 8, 1993. This appeal followed.
Plaintiff contends that (1) it was contrary to the manifest weight of the evidence for defendants to determine plaintiff was disqualified from receiving unemployment benefits on the basis of misconduct, (2) the disqualification decision was contrary to law, and (3) defendants' determination conflicts with the public policy of the State of Illinois. We reverse the circuit court's order affirming defendants' decision and find plaintiff was not disqualified because of misconduct.
Plaintiff was employed by A&M Janitorial Services (A&M) as a custodian/janitor. Various institutions contract out their janitorial services to A&M. A&M numbers among its clientele the Great Lakes Naval Training Center. A&M hired plaintiff as a full-time hourly employee on February 28, 1989. After several changes in job title, plaintiff settled into his position as a janitor at the Great Lakes Naval Training Center. He worked a 5 a.m. to 1 p.m. shift.
On various occasions plaintiff did not receive his paycheck in a timely manner. Plaintiff was paid twice a month. A&M told plaintiff he would be paid on either the first or the second and either the fifteenth or sixteenth of each month. In their decision, defendants found that throughout plaintiff's tenure his checks always arrived after the second and the sixteenth of each month. On several occasions plaintiff took a day off from work to travel to A&M's headquarters to pick up a replacement check. There is no evidence in the record that A&M supervisory personnel ever objected to plaintiff taking days off to pick up his check. Every time plaintiff personally picked up his paycheck, he was instructed to return any duplicate checks received by mail; no duplicate check was ever received.
Plaintiff's termination grew out of a series of events during the week of August 5, 1991, to August 9, 1991. Susan Joyner (Joyner) was employed by A&M as plaintiff's supervisor at the Great Lakes Naval Training Center. On August 5, 1991, plaintiff did not report to work. He had not received his paycheck. Joyner telephoned plaintiff at his home at 5:30 a.m. Plaintiff informed Joyner that he would not be coming in because he had not received his paycheck. Following this conversation, however, plaintiff reported for work at 6:24 a.m. In an affidavit filed before defendants, plaintiff stated that when he got to work he told Joyner he would not be in on August 6, 1991, unless he received his paycheck. On August 6, 1991, plaintiff neither went to work nor called Joyner. Joyner called plaintiff at his home at 5:45 a.m. Plaintiff repeated his explanation of the prior day. In her memorandum to the president of A&M (memorandum) dated August 9, 1991, Joyner states that on August 6, 1991, she "counseled Mr. Garner that he has gotten paid in the past and will be paid; that he was only hurting himself and his absenteeism would be reflected on his employment record." Plaintiff still had not received his paycheck on August 7, 1991. He did not report for work. In the memorandum Joyner states plaintiff left a message on the housekeeping office's answering machine on August 7, 1991, at 2:29 a.m. "Good morning Susan this is Odean. I won't be coming in today and I haven't received my check as of yet. Thank you." On August 8, 1991, plaintiff did not receive his paycheck and, therefore, did not report for work. Joyner's memorandum details an answering machine message left by plaintiff at 4:34 a.m. on August 8, 1991. "Yeah Susan this is Odean. I'm supposed to check on my check today. I'm supposed to call them back when they get into the office. If you need me you can give me a call. Thanks." Plaintiff neither reported for work nor telephoned in on August 9, 1991. At 2 p.m., one hour after his assigned shift ended, plaintiff received his check.
Plaintiff reported for work on August 12, 1991, and was given his termination papers for failing "to appear for assigned duties on three (3) consecutive working days (August 6-7-8, 1991), and according to A&M * * * policies and procedures this infraction constitutes employee resignation or termination of employee by management." In its decision defendants found plaintiff's actions were a wilful disregard of his employer's interests, and caused the employer harm." Defendants also determined plaintiff had been "warned that his job could be jeopardized, and chose to ignore his supervisor's pleas to report for work or at least give advance notice so a replacement could be obtained." Defendants affirmed the referee's finding that plaintiff had been fired for misconduct.
We first address the standards of review applicable to appeals under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1992)). We review the decision of the board of review, not the referee. ( Hoffmann v. Lyon Metal Products, Inc. (1991), 217 Ill. App. 3d 490, 497, 160 Ill. Dec. 384, 577 N.E.2d 514.) Administrative agency findings and conclusions of fact are prima facie true and correct. ( Hoffmann, 217 Ill. App. 3d at 497, citing Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 510; 735 ILCS 5/3-110 (West 1992).) Our function is limited to determining whether the administrative agency's decision is against the manifest weight of the evidence. ( Hoffmann, 217 Ill. App. 3d at 497, citing Jackson, 105 Il. 2d at 513.) To reverse an agency's finding or conclusion of fact the reviewing court must determine that the opposite conclusion is clearly evident. ( Crowley v. Department of Employment Security Board of Review (1989), 190 Ill. App. 3d 900, 904.)An agency's conclusions may not be overturned merely because we find them unwise or their policy inappropriate. ( Crowley, 190 Ill. App. 3d at 904.) This deference does not extend to an administrative agency's conclusions of law. ( Adams v. Ward (1990), 206 Ill. App. 3d 719, 723, 151 Ill. Dec. 782, 565 N.E.2d 53.) If the agency's findings are not supported by substantial evidence, the agency will be reversed. Hoffmann, 217 Ill. App. 3d at 497.
The Act provides assistance to employees who are terminated for reasons other than misconduct. In light of this purpose, the Act must be liberally construed in favor of those applying for insurance benefits. ( Hoffmann, 217 Ill. App. 3d at 498.) The Act provides in relevant part:
"An individual shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work and, thereafter, until he has become reemployed and has had earnings equal to or in excess of his current weekly benefit amount * * *. * * * For purposes of this subsection, the term 'misconduct' means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual's behavior in the performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit." (Emphasis added.) 820 ILCS 405/602A (West 1992).
An employee's action constitutes misconduct only if three requirements are fulfilled. The employee must have (1) engaged in deliberate and willful conduct, (2) in violation of a reasonable rule or policy regulating the performance of the employee's work, that (3) either (a) harmed the employer or a fellow employee or (b) was repeated in the face of an explicit warning or instruction to the contrary. If all three requirements are not met, the employee should not be discharged for ...