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08/03/95 JOSEPH P. PERTO v. BOARD REVIEW

August 3, 1995

JOSEPH P. PERTO, PLAINTIFF-APPELLANT,
v.
THE BOARD OF REVIEW, ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY; LOLETA DIDRICKSON, DIRECTOR, ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY; AND EMRO MARKETING CO., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 93-MR-813. Honorable John S. Teschner, Judge, Presiding.

Rehearing Denied and Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Doyle delivered the opinion of the court: Thomas and Rathje, JJ., concur.

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Plaintiff, Joseph Perto, appeals from an order of the circuit court of Du Page County which affirmed a decision of the Board of Review (Board) of the Illinois Department of Employment Security (Department). The Board's decision denied plaintiff unemployment compensation benefits on the basis of misconduct under section 602A of the Unemployment Insurance Act (Act) (820 ILCS 405/602A (West 1992)).

On appeal, plaintiff contends that: (1) the trial court erred by applying an incorrect standard of review; (2) plaintiff was not guilty of misconduct under section 602A; (3) the trial court erred by not remanding for the taking of additional evidence; and (4) the trial court's order and the Board's decision are void because an agent representing the employer was guilty of the unauthorized practice of law. We granted leave to the Illinois State Bar Association to file an amicus curiae brief in support of plaintiff's position on the question of the unauthorized practice of law.

The relevant facts are as follows. Plaintiff was employed by Emro Marketing Company (Emro) for about 1 1/2 years until January 19, 1993. Emro operated a number of gas stations in the Chicago area. In addition to selling gas, the stations also sold cigarettes and sundries. Plaintiff managed one of Emro's gas stations. Plaintiff's specific duties included: scheduling employees, ordering and accounting for inventory, transferring the store receipts to the bank, and working the cash register.

Plaintiff's supervisor was Ken Brickman, a district manager for Emro. On January 19, 1993, during a visit to the gas station managed by plaintiff, Brickman fired plaintiff.

On January 25, 1993, plaintiff applied for unemployment benefits through the Department. On one of the forms plaintiff completed as part of his application for benefits, plaintiff stated that he had been discharged because of "uncontrollable shortages from store audits." On February 8, 1993, during an interview with a Department representative, plaintiff reiterated the same reason for his discharge and added that he had received a prior warning regarding the shortages "a couple of months before."

On February 8, 1993, Emro, through an authorized agent, the Frank Gates Service Company (Gates), completed a form and sent it to the Department. The Department had sent the form to Emro to notify Emro of plaintiff's claim for benefits and to determine whether Emro wished to protest the claim. The returned form indicated that Emro wished to protest plaintiff's claim for unemployment benefits because plaintiff had been discharged for neglect of duties.

The Department mailed a letter dated February 13, 1993, to Emro in care of Gates. The letter notified Emro that an adjudicator had determined that plaintiff was eligible for unemployment benefits because his discharge was not for misconduct. The letter advised Emro that it had 30 days to appeal the determination.

Through Gates, Emro replied by a letter dated March 3, 1993. The letter stated that Emro disagreed with the determination that plaintiff was eligible for unemployment benefits and that plaintiff was not discharged for an inability to perform his duties but rather for neglecting his duties. The letter detailed specific instances of plaintiff's alleged neglect of his duties which included: (1) at least six instances of cash shortages and one instance of a cash overage between August 10, 1992, and January 19, 1993, resulting in a total shortage of $5,363.41 since August 1992; (2) plaintiff's absence from work without approval on January 14, 1993; (3) plaintiff's failure to make bank deposits on the day they were received; and (4) plaintiff's failure to perform weekly commodity counts. The letter sought a redetermination of plaintiff's eligibility or a telephone hearing on the matter.

On May 21, 1993, through one of its referees, the Department conducted a telephone hearing on the matter. Plaintiff testified for himself and Brickman testified for Emro. Brickman's testimony tended to show that plaintiff was remiss in his duties in the same areas that the March 3, 1993, letter from Gates had addressed, i.e., failure to perform weekly commodity counts; cash shortages; failure to make daily bank deposits; and an unapproved absence from work on January 14, 1993. Brickman also testified that on November 30, 1992, he gave plaintiff a disciplinary notice for cash shortages.

Plaintiff admitted that he had failed to make timely bank deposits "a couple times." Plaintiff explained that there were a few times when he was not relieved by another employee in time to make the bank deposit until late in the day. Plaintiff stated, "I wasn't going to go later at night." Plaintiff also explained that on two days specifically mentioned by Brickman as days that he failed to make deposits, January 13, and 14, 1993, the bank was closed because of a computer installation. Plaintiff testified that he had informed Brickman of the bank being closed on those days.

With respect to his absence from work on January 14, 1993, plaintiff testified that he attempted to contact Brickman by pager early in the morning on January 14, 1993, but did not receive a response from Brickman. Plaintiff testified that he was absent because he had hurt his back and needed to go to the doctor that day. He went to work from 9 a.m. until 11 a.m. to allow an employee to take his wife to work. Plaintiff acknowledged that he did not attempt to call Brickman to report his absence after the initial call. When the referee asked plaintiff why he did not try to contact Brickman later in the day, plaintiff responded that he had informed the employee to have Brickman call plaintiff at home if Brickman called the gas station, Plaintiff acknowledged that he was aware of his responsibility to inform Brickman of his absence from work. Plaintiff also testified that there have been problems in the past contacting Brickman by pager.

As to the cash shortages, plaintiff claimed that they were out of his control. Plaintiff testified that he was not taking merchandise and did not know how it was taken. Plaintiff suggested that a cash register malfunction about one month before his termination could account for some of the shortages.

Plaintiff acknowledged that he had not performed weekly commodity counts. He stated that he had done them at first, but toward the end of his employment he had not done them. He stated that he could not straighten out the count after the cash register malfunction.

Brickman admitted that the cash register occasionally malfunctioned and stated that such a malfunction might account for an inventory shortage, ...


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