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07/08/96 GRIGOLEIT COMPANY v. DEPARTMENT EMPLOYMENT

July 8, 1996

THE GRIGOLEIT COMPANY, PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF EMPLOYMENT SECURITY, STATE OF ILLINOIS, LOLETA A. DIDRICKSON, DIRECTOR OF THE DEPARTMENT OF EMPLOYMENT SECURITY, STATE OF ILLINOIS, THE BOARD OF REVIEW OF THE DEPARTMENT OF EMPLOYMENT SECURITY, STATE OF ILLINOIS, ROLLAND W. LEWIS, JOHN G. CASHMAN, STANLEY V. MUCHA, GARY J. SULLIVAN AND JON R. WALKER, INDIVIDUALLY AND IN THEIR CAPACITIES AS MEMBERS OF THE BOARD OF REVIEW OF THE DEPARTMENT OF EMPLOYMENT SECURITY, STATE OF ILLINOIS, AND KAREN SMITH, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Macon County. No. 95MR86. Honorable Scott B. Diamond, Judge Presiding.

As Correected October 18, 1996.

Honorable Rita B. Garman, J., Honorable Robert W. Cook, P.j., Honorable John T. McCULLOUGH, J., Concurring. Justice Garman delivered the opinion of the court.

The opinion of the court was delivered by: Garman

JUSTICE GARMAN delivered the opinion of the court:

Plaintiff, the Grigoleit Company, brought this action for administrative review of a decision by the Board of Review of the Illinois Department of Employment Security (Board) that claimant, Karen Smith, was eligible for unemployment insurance benefits. The circuit court affirmed the Board's decision and plaintiff appeals, arguing claimant is disqualified from receiving benefits under either section 601A or section 602A of the Unemployment Insurance Act (Act) (820 ILCS 405/601A, 602A (West 1994)). We disagree and affirm.

Smith was employed as a production worker by plaintiff from March 10, 1984, to November 7, 1994. It is undisputed that in her 10 1/2 years as an employee of plaintiff, Smith missed only five days of work and never received a disciplinary warning of any kind. On November 3, 1994, plaintiff posted a notice informing all production workers that they would be required to work on Saturday, November 5, 1994. Although Saturdays were not normally scheduled workdays, plaintiff's employment policy required employees to report to work according to any posted schedule changes. Smith reported to work on November 5, 1994, but early in her shift, the production line malfunctioned and Smith was told it would not become operational again that day. Smith's supervisor then asked her to sweep the work area. Smith's response to her supervisor was that she had come to work to run the production line but not to clean, and that she wanted to go home. Smith's supervisor told her she would lose the day's pay if she left work; nonetheless, Smith chose to leave work.

On Monday, November 7, 1994, Smith reported to work and worked her full scheduled shift. After finishing her shift, Smith was instructed to pick up a letter in the management office. The letter informed Smith that by leaving work early on November 5, 1994, and failing to provide notification of her leave, she had committed misconduct and had forfeited her work schedule. The letter stated that if Smith wanted to continue working for plaintiff, she was to provide a written explanation of her conduct by 10 a.m., November 9, 1994.

On November 9, 1994, Smith delivered a statement to plaintiff's office explaining the events of Saturday, November 5, 1994. Later that day, Sharon LeCates, a resources and compliance manager for plaintiff, notified Smith that her letter was not sufficient to reinstate her and that, according to company policy, before she would be scheduled for work, she had to submit an "offer to work" to the company. Smith never submitted an offer to work to plaintiff.

On November 10, 1994, Smith filed a claim for unemployment insurance benefits. On December 2, 1994, a claims adjudicator determined Smith was ineligible for benefits under sections 500C and 601A of the Act (820 ILCS 405/500C, 601A (West 1994)). On December 6, 1994, Smith filed a request for reconsideration of the claims adjudicator's determination with the Illinois Department of Employment Security. On December 27, 1994, a hearing was held before a referee.

At the December 27, 1994, hearing, the issues were (1) whether Smith voluntarily left her job without good cause attributable to her employer, which would disqualify her from receiving benefits under section 601A of the Act; or (2) whether Smith was discharged for misconduct connected with her work, which would disqualify her under section 602A of the Act; and (3) whether Smith was able to, available for, and actively seeking work during a two-week period under review, as required by section 500C of the Act.

Smith, her supervisor, and LeCates testified at the hearing regarding the events of November 5, 1994, and the subsequent actions taken by plaintiff and Smith. The referee issued his decision on December 28, 1994. The referee found Smith did not anticipate that she would be discharged if she left work early on November 5, 1994, but only that she would be docked a day of pay if she did so. Thus, the referee determined Smith did not resign from her job, constructively or otherwise, when she left work on November 5, 1994, and was not disqualified from receiving benefits under section 601A of the Act.

The referee further determined that in leaving work early on November 5, 1994, Smith had not engaged in an act of misconduct and therefore was not disqualified from receiving benefits under section 602A of the Act. Finally, the referee determined Smith was ineligible for benefits for the period November 6, 1994, through November 19, 1994, because she had not been available for, nor actively seeking, employment during that time.

In January 1995, plaintiff filed an appeal of the referee's decision with the Board. The Board determined that by refusing to schedule Smith to work after November 7, 1994, and by requiring her to submit an offer to work without the guarantee that such an offer would be accepted, plaintiff caused Smith's separation from work. Accordingly, the Board concluded section 601A of the Act was inapplicable to Smith's claim for benefits.

Having affirmed the referee's finding that Smith did not voluntarily leave her employment, the Board then examined whether Smith had engaged in misconduct under section 602A of the Act and found that she had not. In support of its finding, the Board noted Smith had never received any disciplinary warnings prior to November 5, 1994. Finally, the Board affirmed the referee's finding regarding Smith's ...


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