IN THE MATTER of the Employment Insurance Act
- and -
IN THE MATTER of a claim for benefits by
KENNETH MacLENNAN
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IN THE MATTER of an appeal by the claimant to the Umpire
from the decision of a Board of Referees rendered at
Toronto, Ontario on February 26, 1998.
DECISION
Heard at Toronto, Ontario on January 6, 1999.
THE HONOURABLE W.J. GRANT, Q.C., UMPIRE:
This is an appeal by the claimant from the unanimous decision of a Board of Referees rendered at Toronto, Ontario on February 26, 1998 dismissing the claimant's appeal from the decision of the Insurance Officer that he left his employment due to his own misconduct.
This appeal is under Section 115.2 of the Employment Insurance Act, and no sub-section has been cited.
In Exhibit 4 the claimant stated that he left his employment due to working conditions which involved second hand smoke. There had been a change in the location of the premises from one which had a 36 foot ceiling to the basement of the same building. There had been other complaints, and efforts were made to rectify them.
In Exhibit 5-1 and 5-2 there is the quotation "... however, this is a bar and there are always smokers."
It is generally conceded by the general public, including the medical fraternity, that second hand smoke is a major contributor to health problems, including throat cancer. As I understand the law in Toronto, Ontario today there is no smoking in public buildings, which includes restaurants and bars. There was thought that there would be some problem in enforcing this change in the law, but apparently enough of the general public recognized the inherent cost, both human and financial, to smoke and smoking, and there has not been sufficient public pressure to have the prohibition rescinded. Perhaps there is a reluctance to enforce it in certain circumstances, but that is generally the same with a great many prohibitions.
I do not think that any person should voluntarily expose himself/herself to cigarette smoke, either second hand or first hand, without incurring a very substantial future medical risk.
Notwithstanding the very powerful tobacco lobby resisting the acceptance of the scientific and medical facts concerning the dangers of smoking, the public is now aroused, and even its elected representatives have taken action. The very room in which these proceedings take place has an absolute prohibition on smoking as does every public building in Canada, and most private ones.
The claimant said he sought other employment. He had been in that workplace for some time, but presumably the health risk was not taken into consideration by the Employer when it moved from a place with ceilings of 36 feet to a basement. There had been complaints prior to that of this claimant. This claimant had complained through his Union to the Health and Safety Committee within the Hotel and to the General Manager to no apparent avail.
The claimant said he and a fellow worker did not walk off the job, but they waited until the end of the shift. The fellow worker got benefits, and the claimant did not.
The claimant stated that complaints were made to the Assistant Managers, to the Food and Beverage Managers, to the Food and Beverage Directors, to the General Manager, the Union
Steward, the heads of the Health and Safety Committees, the Ontario Jockey Club liaisons, the head of Human Resources, and to the Maintenance Department, and these were reasonable steps taken by the claimant and others.
The claimant said when they left work everything was closed down and locked up, the Managers were informed, the Jockey Club was aware of it, and a call was taken to the Union. Thereafter a letter was sent to the General Manager, the head of Security, the head of Health and Safety, the Food and Beverage Manager, and the Jockey Club liaison. The shift ended at approximately 11:00 p.m., and measures were taken to ensure the lounge was locked, all duties were completed, and other people on duty were informed.
The Board, in its decision, did not deal with the question of whether the claimant lost his job due to his own misconduct or whether he had just cause for leaving. In fact the matter of just cause was not placed before the Board in the representations of the Commission.
Rather than send this matter back to a new Board, I feel I should deal with it myself. I find the Board failed to exercise its jurisdiction in dealing with the matter of just cause. I find there was just cause, it was a health hazard.
What would the reasonable alternative be? Certainly not to stay there, and be further exposed to the smoke. Certainly not to make further complaints because the ones that were made were not heeded or were heeded in a most ineffective way. No Canadian should be forced to expose himself/herself to this kind of a health risk with the knowledge that presently is in the public domain concerning the health risks of smoking either directly or indirectly. One of the results of lung cancer caused by smoking is the near bankruptcy of our health care system, and one of the major contributing factors is the high cost of treating cancer resulting from smoking. That, of course, is a very small part of the cost because most of it is borne by the families of those patients.
I allow the appeal. I find just cause, and I find no reasonable alternatives.
"W.J. Grant"
W.J. Grant - Umpire
PRESENT:
The Claimant appeared on
his own behalf
For the Commission:
Helen Park
Dated at Halifax, Nova Scotia
January 29, 1999