CUB 46772

IN THE MATTER of an appeal to an Umpire by the claimant
from a decision of the Board of Referees given at
New Westminster, British Columbia on December 3, 1998.

DECISION

This appeal was heard at Vancouver, British Columbia on Wednesday, November 10, 1999.

At issue is whether the appellant left her employment without just cause. The facts are not is dispute. The appellant was a cook employed at Met Bar and Grill from July 1, 1997 to September 18, 1998. She is an admitted alcoholic. It is generally recognized and accepted that alcoholism is a disease, unfortunately an insidious one, that is not curable. An alcoholic must spend his or her entire life fighting the urge to drink. Unfortunately, for the appellant, she was offered free beer at the end of her shift and was unable to stop drinking until the bar closed. To her credit, she attempted to do something about it. She began to take holiday time and reduced her shifts from five days a week to three days. However, her employer needed her to work due to shortage of staff and increased her shifts. Her health was also deteriorating. She saw her doctor but did not divulge the extent of her medical problems. Recognizing that she needed to get away from the source of her problem, she decided to quit her job.

The Commission concluded that she had voluntarily left her employment without just cause and imposed an indefinite disqualification. The Board of Referees agreed with the Commission and dismissed her appeal.

In a very able argument, her counsel, Mr. Devlin Farmer submitted that the Board erred in its conclusion that the appellant did not fall within the exception provisions of section 29(c)(iv) of the Act. That section provides,

(c) just cause for voluntarily leaving an employment or taking leave from an employment exits 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 Board of Referees recognized that the appellant was experiencing medical and health problems attributable to her alcoholism. However, the Board rejected the argument that it was the claimant's working conditions which constituted a danger to her health and safety, but rather the environment in which she worked. Mr. Farmer submitted that in reaching this conclusion, the Board erred. He said that since the appellant was unable to say "no" to alcohol, the only way she could control her addiction was to say "no" to her job.

I agree. Putting an alcoholic in a job where an alcohol is readily available is no different than putting a worker with a skin condition in a job where the working environment will aggravate that condition. Although section 29(c)(iv) does not speak of working conditions that "cause" a danger to health or safety, but rather conditions that "constitute" a danger to health or safety, in my view, the appellant's working conditions constituted a danger to her health or safety because she had to constantly fight her need to feed her addiction. In her case, she lost that fight.

As I see it, the real issue which has to be addressed in this case is whether the appellant "had no reasonable alternative to leaving or taking leave." The Board addressed this issue by concluding that she should have told her employer that she was an alcoholic and requested that she not be offered free beer. I cannot see how this would have been a solution to her problem. Surely, her employer must have realized that she was an alcoholic and not have offered her free beer. In my view, her only reasonable alternative was to get out of that environment because of the constant temptation to drink.

However, the Board was also required, in my view, to determine whether the appellant made reasonable attempts "in all the circumstances" to find other employment. It was not enough for the appellant to leave her employment and make no efforts to find another job. The Board made no findings on this issue.

Accordingly, this appeal must be allowed and the matter be sent back to a Board of Referees differently constituted to determine this issue.