In the Matter of the Employment Insurance Act
and
In the Matter of a claim for unemployment benefits by
John Dines
and
In the Matter of an Appeal by the Claimant from the decision of a Board of Referees given at Whitehorse, Yukon Territory on June 3, 2003
DECISION
R.C. STEVENSON, UMPIRE:
Mr. Dines appeals from the majority decision of a Board of Referees dismissing his appeal from a ruling of the Commission that he was disqualified from receiving unemployment benefits because he had voluntarily left his employment without just cause.
No oral hearing having been requested the appeal is to be decided on the basis of the documents filed.
Mr. Dines was hired by Northern Metallic Sales for a 90-day probationary period commencing August 26, 2002. He did not realize that the workplace was one where employees and customers were permitted to smoke at will. Mr. Dines is a former smoker who is now very sensitive to and intolerant of second-hand smoke. The situation was aggravated in November when cooler weather dictated that the warehouse doors be kept closed.
Mr. Dines expected to be interviewed by the employer at the end of his probationary period. No interview was scheduled and after waiting three weeks Mr. Dines left the employment because of his intolerance of the smoke. It had been apparent to him that management were adamant that smoking would continue to be allowed on the premises.
The majority of the Board of Referees said they were sympathetic but that Mr. Dines had reasonable alternatives including (1) contacting the owner sooner to discuss his concerns, (2) writing a letter to the employer explaining how the smoke was affecting his health, (3) obtaining a letter from his doctor and (4) seeking other work before quitting.
The dissenting referee gave greater weight to the well known health danger of second-hand smoke and the written documentation of that danger submitted by Mr. Dines. She concluded that Mr. Dines had just cause to leave the employment.
The dangers of second-hand smoke are now so well known that it should not be necessary for a claimant to provide medical evidence that he is more susceptible to the danger or more intolerant of smoke than others. In this case the evidence is clear that complaints to the employer would have fallen on deaf ears.
While as a general rule one should seek other employment before quitting a job, that is not the case where there are intolerable working conditions that constitute a danger to health or safety. See CUBs 38611 and 43142. The majority of the Board of Referees erred in fact and in law when they found that Mr. Dines had reasonable alternatives to leaving the employment.
The appeal is allowed and the disqualification is set aside.
RONALD C. STEVENSON
Umpire
FREDERICTON, NEW BRUNSWICK
December 12, 2003