CUB 60013

Hon. David G. Riche

The issue in this case is whether or not the claimant had just cause for leaving her employment on the 29^th of January, 2003.

The Board of Referees dismissed the claimant's appeal because they felt that the claimant had no reasonable alternative to leaving or taking leave having regard to all the circumstances. They found that she could have continued working and sought new employment before leaving and could have consulted the employer with a view to resolving issues that she was having problems with.

The facts of the case are that the claimant quit her job because of smoke from an adjacent room and because the temperature was too hot and the environment unprofessional. She did not contact the Workers' Compensation Board at the time because she didn't want to get her employer into trouble. She did, however, contact them after.

I have reviewed the exhibits and in particular, Exhibit 4.1, in which the claimant states that her reason for leaving was the smoke from the smoke room which was adjacent to where she was working, and that the temperature was very hot, which was caused by the door to the smoke room having to remain closed. She also advised me that the unprofessional environment arose out of the reaction of the others working there to her objections to smoking. She spoke to the supervisor and some attempt was made to fix the problem. She stated that the smoke problem continued. The claimant was very concerned about the issue of second hand smoke. I also note that during the period she had applied for work in two or three places and eventually obtained work about six weeks after she left her employer.

In Exhibit 5.1 the claimant had stated her working conditions. There was second hand smoke drifting into her work area. She spoke to her supervisor about cigarette smoke and he said he didn't like the smell of smoke either but there was really nothing to be done about it. She did not approach the other supervisor because that person was a smoker and she didn't think he would be sympathetic.

With regard to the temperature, she found that the temperature was on average 26 degrees celcius.

Later her supervisor did not take her concerns seriously and made comments like "you should wear a bikini".

Later the employees were told not to turn on air-conditioning to correct the heat problem. She was advised that the heating problem had been fixed but that was not true.

I have considered the decision of the Board of Referees and was concerned with the fact that the Board underlined that the claimant did not quit her job due to health reasons yet she now appears to claim this to be the case. There was no evidence that the claimant was suffering from health problems such as asthma or emphasema. Her complaint was because of the dangers which smoke could be to her health. I am of the view that it was inappropriate for the Board of Referees to rely on the statement that the claimant was not suffering from a health problem to form the basis of their decision. In my view, it was up to the Board to determine whether or not the working conditions at the place of employment constituted a danger to her health or safety. That is provided under s. 29(c)(iv) of the Act. I was also concerned with how the Board of Referees did not consider the comment by the employer that the claimant should wear a bikini to work to solve the heat problem. Although it was said in jest, surely it was not an appropriate remark.

Counsel for the Commission relied on the decision in Purvess - CUB 24701 where the claimant left work because he was concerned about the dangers of smoking and being subjected to second hand smoke. In that decision the learned Umpire came to a conclusion that the working conditions did not constitute a danger to health and safety so as to provide just cause. It is my view that we have come a long way since 1994 with respect to the effects of second hand smoke. During the past decade almost every working place is smoke free and many public establishments are also smoke free depending upon the area in which you live in Canada. Further many cities have outlawed smoking in restaurants. We also have non-smoking floors in hotels. It is my view that it is incumbent upon employers to provide smoke free environments for all workers. If however the employer wishes to have an area for smoking, it must be so secluded so as not to be a danger to any of the other employees working there.

In the claimant's case it seems clear that she was exposed to second hand smoke and I am satisfied that I can take judicial notice of the fact that second hand smoke is recognized scientifically as being a danger to health.

For these reasons I am satisfied that the claimant's appeal should be allowed and the decision of the Board of Referees set aside. The claimant had endured this environment for some two and a half months and had sought other employment and eventually acquired other employment within a short time. The appeal is allowed and the decision of the Board of Referees set aside.

David G. Riche

Umpire

January 30, 2004
St. John's, NF