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Wrobel v. Illinois Department of Employment Security

November 18, 2003


Appeal from the Circuit Court of Cook County. Honorable Thomas R. Chiola, Judge Presiding.

The opinion of the court was delivered by: Justice Wolfson


Plaintiff Philip Wrobel was a pressman for the Chicago Tribune ("Tribune") for 17 years, until his firing on September 27, 2001. After his termination, plaintiff applied for benefits under the Unemployment Insurance Act ("Act"). 820 ILCS 405/100 et seq. (West 2002) However, the Illinois Department of Employment Security ("IDES") denied his claim, agreeing with the Tribune that plaintiff was terminated due to misconduct connected with his work. 820 ILCS 405/602(A) (West 2002). Plaintiff continued to pursue benefits and requested a hearing before a referee. The referee affirmed IDES' denial of benefits. Plaintiff appealed the referee's decision to IDES' Board of Review ("Board"). The Board adopted the factual findings and legal reasoning of the referee and sustained her decision. Plaintiff then filed a complaint for administrative review of the Board's decision in the circuit court. The circuit court affirmed the Board's decision and plaintiff then appealed to this court.

Plaintiff contends that his actions were not misconduct because the rule he violated was unreasonable, and because any rule violation he committed was not done willfully and deliberately. We reverse.

Plaintiff's hearing took place via a telephone conference call on November 15, 2001. Plaintiff, two of plaintiff's supervisors, and a Tribune human resources representative testified. The following facts were elicited at plaintiff's hearing.

Plaintiff's shift started at 6 a.m. In the event he was going to be absent or late, he was supposed to call a supervisor by 5 a.m.

The Tribune had an attendance policy providing for various levels of discipline based on the number of attendance infractions. The Tribune gave its employees written copies of the policy on more than one occasion. Under the policy, attendance infractions would be measured in revolving 12-month periods; so, an infraction would not be counted against an employee after 12 months from that infraction. Failing to call in an absence or late arrival, or calling in late, counted as two infractions.

After one late call, late arrival, or absence, an employee would receive counseling. After two, an employee would receive a verbal warning. After three, the employee would receive a written warning. After a fourth, an employee would receive a second written warning. After a fifth, the employee would be suspended for three days. And finally, in the event of a sixth, an employee would be terminated. The Tribune retained the right to accelerate the disciplinary schedule if a supervisor saw fit to do so.

Plaintiff had attendance issues. On March 25, 1999, he had an unexcused absence, followed by two late arrivals to work on June 17 and September 23, 1999. At that point he received a written warning from the Tribune. Plaintiff had another unexcused absence on November 18, 1999, and then called in sick after 5 a.m. on March 16, 2000, leading to his second written warning. Plaintiff received a three day suspension from the Tribune after another unexcused absence on June 25, 2000. As of March 23, 2001, some of plaintiff's earlier infractions were over a year old, and no longer counted against him. So, when he failed to call in before 5 a.m. that day, he only received another written warning. On April 28, 2001, plaintiff called his supervisor after his shift was to have begun to inform him that he had overslept. On May 2, the Tribune informed plaintiff that another infraction could lead to the loss of his job. When plaintiff called in at 5:50 a.m. to tell his supervisor that he would be late on September 27, 2001, the Tribune decided to fire him.

The referee focused the testimony around the September 27, 2001 incident. Plaintiff testified that he called in late because he overslept. He explained that his electric clock-radio failed to sound that morning as a result of a power outage overnight. His back up, wind-up clock also failed to go off because he forgot to set it the night before. Plaintiff admitted that the electric clock's power could have been backed up with batteries, but that he never put any in. Plaintiff testified that he explained why he had overslept to his supervisors, and both supervisors acknowledged hearing about the malfunctioning alarm clock.

The only testimony regarding the circumstances of plaintiff's other attendance infractions was about his late arrival on April 28, 2001. Plaintiff indicated that his electric clock-radio also failed to sound on that morning, although he did not know why. One of the supervisors remembered plaintiff giving that explanation at the time.

The referee found plaintiff's explanation as to why he called in late on September 27 credible. However, the referee concluded that "the circumstances that caused his final attendance violation were within his ability to control or avoid." Because he did not take steps to ensure that his alarm clocks would go off, even in the event of a power failure, the referee determined that plaintiff's discharge was for misconduct. The Board is the trier of fact, and its conclusions of fact are considered as prima facie true and correct. Greenlaw v. Department of Employment Security, 299 Ill. App. 3d 446, 448, 701 N.E.2d 175 (1998). We will disturb the factual findings of the board only when they are against the manifest weight of the evidence. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295 (1998). However, we owe no deference to the Board's conclusions of law. Katten Muchin and Zavis v. Department of Employment Security, 279 Ill. App. 3d 794, 799, 665 N.E.2d 503 (1996). We will reverse the Board's decisions when they are based on misinterpretations or misapplications of the law. Katten Muchin and Zavis, 279 Ill. App. 3d at 799. Whether an employee's conduct amounted to misconduct under the Act is a question of law, reviewed de novo. Grigoleit Co. v. Department of Employment Security, 282 Ill. App. 3d 64, 71, 669 N.E.2d 105 (1996); see also London v. Department of Employment Security, 177 Ill. App. 3d 276, 279, 532 N.E.2d 294 (1988) (Board's determination that claimant fired for tardiness was a legal conclusion). We will therefore review the Board's determination that plaintiff's absences and tardiness amounted to misconduct de novo.

The benefits provided by the Unemployment Insurance Act are meant to "alleviate the economic hardship occasioned by involuntary unemployment." Siler v. Department of Employment Security, 192 Ill. App. 3d 971, 974, 549 N.E.2d 760 (1989). The Act should be liberally construed to favor the awarding of benefits. Lachenmyer v. Didrickson, 263 Ill. App. 3d 382, 388, 636 N.E.2d 93 (1994). However, the Act was not meant to provide benefits if an employee was discharged for his own misdeeds. Siler, 192 Ill. App. 3d at 974.

To be guilty of misconduct that would preclude benefits, the employee must deliberately and willfully violate a "reasonable rule or policy of the employing unit, governing the individual's behavior in 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." 820 ILCS 405/602(A) (West 2002). Each element must be proved to establish misconduct: the employee's willful and deliberate violation of the rule, the reasonableness of the rule, and the harm to the employer or ...

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