CUB 46397

The Honourable N. Barbès

This appeal was heard at Montreal, Québec, on August 16, 1999. Me Roch Guertin acted as counsel for the appellant and Me Suzon Létourneau as counsel for the respondent.

Mr. Schon applied for employment benefits on March 18, 1998, after he had quit his job with the Department of Anatomy at McGill University.

At first, it appeared that the claimant had voluntarily left his employment without just cause.

Then a supplementary report on this claim indicated that the insured had been exposed to embalming fluid vapors above the acceptable levels of exposure and that he had been subject to a serious health risk for some time.

The appellant declared on March 25 (Exhibit 5.1) that the ventilation during embalming procedures at the morgue had not been functioning properly in three areas for a long period of time.

The appellant's last employment, at which he had been working only 22.5 hours a week, had been detrimental to his health.

The Insurance agent wrote on April 6, 1998, that Mr. Schon could not obtain regular insurance benefits because he had left his job on February 27 without just cause.

It was then decided to appeal this refusal.

THE APPEAL

Before the Board of Referees, on June 6, 1998, the question at issue was as follows: should the appellant be disqualified from employment benefits because he voluntarily left his job without just cause?

The members of the Board unanimously approved the Commission's refusal to pay.

APPEAL TO THE UMPIRE

Deciding to refer the matter to the Umpire, the claimant alleged that the Board erred in law and based its decision on an erroneous finding of fact, without regard for the material before it.

A verbal report of the hearing of June 9, 1998, was presented in Court.

Section 29(c) of the Employment Insurance Act reads as follows:

29. For the purposes of sections 30 to 33:

c) just cause for voluntary leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:

(iv) working conditions that constitute a danger to health or safety; ...

The appellant worked until the end of 1997 in the Department of Anatomy at McGill University in Montreal.

There he was exposed to embalming fluid vapors above the acceptable level of exposure for some time; he worked under conditions that constituted a serious health risk for several years.

Mr. Schon testified before the Board of Referees that for seven years he had been a senior technician and embalmer, at the morgue. In the embalming process, they had to use formaldehyde, phenol, ethanol and glycerin.

These elements were mixed into a batch and once the solution was made it was placed into the embalming pump, and then into the cadaver.

Using of phenol tends to cause headaches; the product can also burn the skin severely.

This morgue was in an area measuring 10 feet wide and 30 feet long; the laboratory is shown on exhibit 4.11. There was one ventilation duct in the ceiling near the elevator. This was where Mr. Schon worked when embalming cadavers.

The ventilating system had not been working properly since 1992. The appellant produced as Exhibit 10 a memorandum referring to 1994. The facilities were even condemned, at one point that year, for a period of one or two weeks.

The ventilation soon became insufficient again and the problem was never properly dealt with.

The embalmer had been working there since 1992, although only 22.5 hours a week, and he had to be in the morgue itself for 20 to 30 percent of the time.

When students and medical undergraduates dissected the bodies, the embalmer had to make sure that none of the chemicals were leaking on the floor. He had to oversee the procedure so that no one was at risk.

Filters in the ventilating system were not changed regularly, and some ducts had no airflow because they did not open when necessary.

This system was supposed to push the air down and draw the chemicals out, but the vents on top were not activated properly.

This situation had been discussed with superiors, but to no avail; the problem was not corrected as it should have been.

On October 7, 1997, according to Exhibit 4.3, phenol in the anatomy laboratory was analyzed using gas chromatography and the result showed a potential formaldehyde overexposure in both the embalming facility and anatomy laboratory.

The embalmer did not use gas masks at work because they lacked sufficient replacement filters. While working under a vent, he could at least pull away if the fumes became excessive, and he did so when necessary in order to avoid headaches and nausea. The fume hood near the elevator was not working properly either.

The appellant received a report of the Department of Occupational Health early in January 1998.

He took two months of vacation time prior to February 27, 1998. By then, he had lost faith and realized that he should not put his health at risk anymore.

Finally, Mr. Schon also explained that, things being as described in the morgue, after finishing the embalming procedure he would sometimes feel nauseous and sleepy; he would have headaches and his eyes would be itchy.

Thus he was really forced to resign because the ventilating system at work was not operating efficiently.

These were working conditions that constituted a real danger to health.

The appellant, on the balance of probabilities, had no reasonable alternative to leaving his employment. (See A-141-97 re ASTRONOMO.)

Just cause for voluntarily leaving an employment or taking leave from it exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances.

THEREFORE, the Commission's decision in this case is annulled, as is the Board's answer to the question at issue.

THIS APPEAL IS ALLOWED.

Hon. Noel Barbès, Q.C.

Umpire

OTTAWA, Ontario
September 6, 1999