dissenting:
In the pertinent part of section 602(A) of the Unemployment Compensation Act, “misconduct” is defined as “the deliberate and willful violation of a reasonable [work-related] rale or policy of the [employer] *** provided such violation has harmed the [employer].” (Ill. Rev. Stat. 1989, ch. 48, par. 432(A).) An employee who is discharged for “misconduct” is at least partially disqualified from receiving unemployment compensation benefits. Ill. Rev. Stat. 1989, ch. 48, par. 432(A).
This case rests partially upon an evaluation of whether the record includes evidence to support the Board’s factual determination that the plaintiff “willfully” violated the employer’s package pass policy. It also rests partially upon a statutory construction of what constitutes “harm” to an employer. The basic question before us is whether there was justification for the circuit court to disturb the Board’s conclusion that the plaintiff was discharged for misconduct so that he was not entitled to unemployment compensation benefits.
As to whether the plaintiff’s violation of the package pass policy was willful, I acknowledge that the evidence before the Board can be construed to support the conclusion reached by the majority. The evidence could be construed to show that the plaintiff did not willfully violate the pass rule. However, while the evidence may not “overwhelmingly” support the plaintiff, we, like the trial court, have only the limited function of assessing whether the Board’s decision is against the manifest weight of the evidence. (Adams v. Ward (1990), 206 Ill. App. 3d 719, 723.) In my opinion it was not.
There is evidence here that the plaintiff stipulated to being aware of his employer’s rule requiring a package pass. There also is evidence that he placed a “borrowed” electrical cord into a paper bag and used an unguarded exit rather than his usual exit when he carried the bag from the employer’s facility. Also, there is evidence that only half an hour earlier in the day in question, he demonstrated his knowledge of the package pass requirement when he requested a pass for a coworker. I find sufficient evidentiary support for the Board’s factual determination of willful violation, and, thus, I find no justification to disturb the Board’s factual finding.
In the second, statutory construction issue, whether the plaintiff’s violation caused the employer “harm,” I also find no reason to justify disturbing the Board’s decision. The first district, sixth division, has suggested that when there was no actual loss, section 602(A) “harm” is not shown by evidence of threatened future financial loss to the employer caused by a plaintiff’s willful misconduct. There, the court found that the record supported the trial court’s finding that no harm occurred where the employer recovered its property improperly discarded by the employee. (Adams v. Ward (1st Dist., 6th Div. 1990), 206 Ill. App. 3d 719, 728-29.) The majority here relies, in part, on that Adams suggestion. I would not do so.
Initially, I consider the majority Adams analysis to be unpersuasive and of questionable authority. Rather than making its own analysis of the underlying law (see Flex v. Department of Labor, Board of Review (1984), 125 Ill. App. 3d 1021, 1024), or focusing on the Board’s factual analysis, the Adams majority inappropriately relied apparently on the sufficiency of the record to support the trial court’s finding of no harm. The Board, not the trial court, of course, is the determinative fact finder in this kind of administrative review. See Zenith Vending Corp. v. Village of Schaumburg (1989), 180 Ill. App. 3d 354, 362; Adams, 206 Ill. App. 3d at 723.
In addition to questioning the Adams majority’s reasoning, I also question their conclusion. Other courts have held that the threat of future financial loss caused by the conduct of the employee constitutes “harm” to the employer in the unemployment compensation context. (See Bandemer v. Department of Employment Security (1st Dist., 1st Div. 1990), 204 Ill. App. 3d 192, 195.) I subscribe to that view, in agreement with the Adams special concurrence.
The apparent view of the Adams majority is incompatible with the underlying policy of the Unemployment Insurance Act: to provide benefits to workers whose unemployment is not occasioned by their fault. (Adams, 206 Ill. App. 3d at 730 (Rakowski, J., specially concurring).) The Adams suggestion upon which the majority here relies would protect a discharged worker from loss of unemployment compensation merely because his employer had responded to the worker’s financially threatening conduct and somehow had successfully managed to avoid quantifiable loss.
The record and the law here support the Board’s conclusion that the plaintiff was disqualified from unemployment compensation because of his act harming his employer. That conclusion should have been affirmed by the circuit court. I respectfully dissent.