September 3, 2003

Second Hand Smoke

Second-hand smoke can provide justification for quitting

Halifax casino worker awarded Employment Insurance benefits after quitting

Employers should take note of a recent decision of the Employment Insurance board. The case is of particular importance to employers in the hospitality industry. But all employers should consider the case in respect of an employer’s obligation to provide their employees with a safe and healthy workplace.

Andrea Skinner had worked as a blackjack dealer at the Halifax Casino for seven years. In September 2002 she complained of back pain and her doctors recommended she take one week off of work to recover. Her employer refused to provide her with the requested absence and suggested she was simply using the back injury as an excuse to obtain time off.

During the same period of time Skinner had been suffering from nose bleeding and nose irritation. She believed the nasal problems were a result of the second-hand smoke she endured during the performance of her card-dealing duties. The Halifax Casino was exempt from municipal anti-smoking by-laws.

In December 2002 Skinner decided she could no longer continue with her position because of the medical problems she was experiencing. She did not bring the concerns to her employer’s attention before resigning. Skinner subsequently made an application to receive Employment Insurance benefits.

Workers are not entitled to receive Employment Insurance benefits where they resign unless the employee had good reason for voluntarily leaving their employment. Typically “good reason” requires conduct on the part of an employer that would amount to constructive dismissal. All employers have an obligation to provide employees with a healthy and safe working environment. The failure to provide such an environment can amount to a fundamental breach of the employment contract. This would justify the employee in treating the employment relationship as terminated.

Skinner’s application for benefits was denied the first time around. On appeal the three-member Employment Insurance board concluded there was sufficient evidence to conclude that second-hand smoke was hazardous and that Skinner was particularly sensitive to the hazards of cigarette smoke.

They concluded her exposure to cigarette smoke and the resulting health difficulties played a large part in her decision to leave her long-term position with the casino. The board therefore concluded that Skinner had good reason to leave her employment and was therefore entitled to receive Employment Insurance benefits.

Importantly, the board concluded that Skinner was not obligated to raise the health concerns with her employer prior to taking the extreme step of resigning her employment. The board accepted Skinner’s position that she did not believe the employer would make any attempts to accommodate her special needs and improve her working conditions due to her earlier experience with the treatment she received when she requested accommodation for her back injury.

Had she not experienced such earlier treatment the board may have held she had an obligation to raise the issue with her employer to determine if the problem could be resolved prior to resigning her employment.

The implications of this decision for employers in the hospitality industry are obvious. This decision may be used to suggest that employees cannot be subjected to work in a smoking environment as such an environment is inherently hazardous to the health of the employee.

But all employers should reflect on this decision in the larger context of an employer’s obligation to provide a healthy environment for its workers.

Where an employer allows its employees to be subjected to sexual harassment, a verbally abusive supervisor, exposure to hazardous substances or, as in this case, second-hand smoke, an employee may have good reason to leave her employment. An employee in such a circumstance may be entitled not only to Employment Insurance benefits but may also be successful in claiming the employer’s failure to provide a safe and healthy workplace is a fundamental breach of the employment agreement and therefore the employee may be entitled to damages for constructive dismissal.

Chris Foulon is a partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or cf@israelfoulon.com. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today.

LEGAL DISCLAIMER: This article is for informational purposes only and is not intended to provide legal advice, which in all circumstances must be tailored to the specific facts of any problem. You should obtain a proper legal consultation in order to determine how this article applies to your specific situation.
Please feel free to contact Israel Foulon LLP to learn more at 416-640-1550.

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