DIGEST OF ADJUDICATION PRECEDENTS MC
ISSUE/DIGEST CODE Misconduct/MC 190.1
AUTHORITY 56 Ill Adm Code 2720.315b2
SUBTITLE Burden of Proof and Presumptions
CROSS-REFERENCE MC 190.15, Evidence, Weight and Sufficiency; PR 190.05, Evidence
At an appeal hearing before a Referee, on August 23, 1984, the claimant and witnesses for the employer appeared and testified to
consider the issue of whether the claimant had been discharged for misconduct connected with her work. Based upon his findings,
the Referee issued a decision which allowed benefits to the claimant. The employer appealed to the Board of Review, and in
connection with that appeal, the employer submitted an affidavit, by the claimant's supervisor, which purported to refute the
testimony furnished by the claimant at the August 23 hearing - which the supervisor had not attended. The affidavit was not
accompanied by any statement providing a reason for the supervisor's failure to attend the August 23 hearing. The record did not
show that the employer had requested a continuance of the hearing in order to present the supervisor's testimony.
HELD: Agency Rule 2720.315(b)(2) reads, in pertinent part:
If the party who filed a request to submit additional evidence, or his witness, failed to appear at a scheduled
hearing, the party must show either that he did not receive timely notice of the hearing, that his failure to appear
at the hearing was due to circumstances beyond his control or that he requested a continuance before the
conclusion of the hearing, which was denied.
In the instant case, because no reason was provided for the supervisor's failure to appear at the original hearing, and because no
continuance had been requested, the Board of Review refused to consider the substance of the supervisor's affidavit. The claimant's
testimony, in person, under oath and subject to cross-examination, was entitled to the greater weight. Accordingly, it could not be
concluded that the claimant had been discharged for misconduct connected with her work.
ISSUE/DIGEST CODE Misconduct/MC 190.1
AUTHORITY Section 602A of the Act
SUBTITLE Burden of Proof (Refusal to Take Blood Alcohol Test)
CROSS-REFERENCE MC 270.05, Intoxication
On his last day of work, the claimant, a Truck Driver, was involved in 2 accidents. When he reported in at the end of his shift, he
was confronted by the Transportation Supervisor, who testified that, because he smelled alcohol on the claimant's breath, he
directed the claimant to take a blood test for alcohol.
The claimant refused to take the blood test. He contended, among other reasons, that the contract between his union and the
employer did not require that he take the blood alcohol test. Also, he was fearful that any alcohol which he had consumed up to 18
hours earlier, off the job, might result in the test being "positive."
Upon his refusal to submit to testing, he was discharged.
HELD: The refusal to take a blood alcohol test does not constitute misconduct per se. However, reporting to work in an
intoxicated condition may constitute misconduct.
In the instant case, the employer presented evidence to show that the claimant had been under the influence of alcohol while at
work: he was observed to have alcohol on his breath and he had had accidents with the company vehicle.
The fact that the claimant did not take a blood alcohol test, for whatever reason(s), did not alter the facts as presented by the
employer. The claimant did nothing to rebut those facts.
The employer established by a preponderance of the evidence that the claimant had reported to work in an intoxicated condition.
The claimant's actions, irrespective of his refusal to submit to a blood alcohol test, constituted misconduct connected with his
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