DIGEST OF ADJUDICATION PRECEDENTS MC
While the court action was still pending, on October 18, the claimant filed an application for unemployment insurance benefits.
The claimant had not yet returned to work when, on January 22, 1982, he was tried and acquitted by a jury on the theft charges.
Still, he was told he could not return to work, pending the employer's internal investigation. On February 18, a Claims Adjudicator
issued a determination which disqualified the claimant for benefits, not on the basis of theft, but for misconduct connected with his
work, because the claimant had been in an unauthorized area outside of his usual working hours and under the influence of alcohol.
On March 9, a Referee issued a decision which affirmed the Claims Adjudicator's determination, that the claimant had been
discharged for misconduct connected with his work. On July 16, the Board of Review affirmed the Referee's decision.
The claimant appealed, pointing out that Section 602A of the Act imposed a disqualification only when an individual had been
"discharged" for misconduct connected with his work, and that, during the period in question, he had been serving a suspension --
which was not tantamount to a discharge. The Agency's policy was that a suspension from work for 7 or more days, or of indefinite
duration, was tantamount to a discharge.
HELD: Although Section 602A is not ambiguous on its face, its literal application could lead to an ambiguous result: If
"discharge" is not read to include "suspension," then an employee could commit an act of work connected misconduct and be
compensated for it.
Courts will give substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with its
administration and enforcement. In the instant matter, the Agency's policy was that a suspension from work of 7 or more days, or
of indefinite duration, was a discharge, and, whether such suspension constituted a discharge for misconduct connected with work
was decided by principles generally applicable to discharges. The Agency policy of including suspensions within the term
"discharge" for the purpose of benefits disqualification did not extend the statute beyond its fair and reasonable meaning.
Because the record supported a finding of misconduct by the claimant, and because the claimant's indefinite suspension was
tantamount to a discharge within the reasonable meaning of Section 602A, the Board of Review was correct in determining that the
claimant had been discharged for misconduct connected with his work.
ISSUE/DIGEST CODE Misconduct/MC 5.05
DOCKET/DATE Sudzus v. Department of Employment Security, 393 Ill.App.3d 814, 333 Ill.Dec. 1, 914
N.E.2d 208 (1st Dist., 2009); Leave to Appeal Denied at 234 Ill.2d 554, 336 Ill.Dec. 492,
920 N.E.2d 1082 (Table) (11/25/09)
AUTHORITY Section 602A of the Act
CROSS-REFERENCE PR 190.05, Evidence, general; PR 195.05, Fair Hearing and Due Process; PR 400.05
Representation, By a Non-Attorney
The claimant was employed as an apprentice electrician. He was discharged for misconduct for removing air conditioning
equipment without authorization. After filing a claim for benefits, the local office and the Referee found that the claimant was
guilty of misconduct and held him ineligible for benefits under Section 602 of the Act. The claimant argued that the employer’s
non-attorney representative engaged in the unauthorized practice of law during the hearing by examining and cross-examining
witnesses. He also argued that he did not receive a fair hearing, that the evidence did not show that he was guilty of misconduct,
and that the employer’s testimony was inadmissible hearsay. The Board of Review affirmed the Referee’s decision denying
benefits and rejected all of the claimant’s arguments against it.
HELD: The court discussed four issues. The first concerns the unauthorized practice of law. The court held that the practice of law
turns on the rendering of legal advice, not upon the simple questioning of witnesses in an informal hearing where the strict rules of
evidence do not apply. In this case, the questioning performed by the employer’s representative was brief and clarifying. These
questions did not require legal expertise or argumentation.
The second issue is whether the claimant received a fair hearing as required by due process of law. The court held that the claimant
had received a fair hearing in that he was given an opportunity to be heard and to question the employer’s witnesses. The fact that
he chose not to take advantage of the opportunity to question the adverse employer’s witnesses does not invalidate the proceeding
on grounds of due process.
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