Ex-Employee had Refused to Comply

with Directive in Front of Co-Workers,

No Unemployment Benefits


Risk of Leading Them to Believe

Instructions could be Ignored


            In Wise v. The Department of Emp. Security, 2015 IL App (5th) 130306, a cook and buffet station attendant at a casino filed for unemployment benefits after she was fired.  She had been working the barbecue station of the buffet line on November 19, 2011.  Her boss checked the temperatures of the coleslaw and tuna salad items and instructed Wise to replenish the ice and water under these items.  Wise replied that she was not going to do so because she was tired of doing other people’s jobs, and then left the station to refill the coleslaw – and to tell another employee to get the ice.  Wise went on suspension and admitted thereafter to the employee relations manager that she had refused the assignment, explaining that getting ice and water was pantry work.  The casino fired her for insubordination.


            At her phone hearing Wise admitted that she was aware of a rule at the casino against insubordination.


            The Board of Review at the Illinois Department of Employment Security found Wise to be ineligible, but a county circuit court reinstated her claim. Wise had argued that there was only potential harm to her employer where the food on the buffet table was inadequately chilled. An appellate court reversed.


            The issue was whether her conduct harmed the casino, thereby disqualifying her on the basis of “misconduct” under §602(A) of the Unemployment Insurance Act.  The court rejected the argument that the harm in this case was only potential, and therefore no misconduct could have occurred.  The court quoted from the Fourth District Appellate Court’s opinion in Farris v Dept. of Emp. Security, 2014 IL App (4th) 130391: “If actual harm were required for a finding of misconduct, an employee who steals cash from an office safe would not be guilty of misconduct so long as the police eventually return the cash to the employer.”  Id at ¶40. 


            Wise argued that this was a single isolated incident.  The appellate court placed it in context.  This was not mere argument with a boss but a direct refusal to comply with her supervisor’s reasonable instruction, one arising from safety standards owed to the casino’s customers.


            The court noted also that this refusal took place in front of co-workers, threatening to send the message that policies and procedures could be disregarded.