Anyone who walks around the CBD will attest to the fact that there are still a plethora of employees who smoke. Entering and exiting some buildings is akin to running into a fire. This ongoing situation is not limited to the CBD though, with some factory gates hidden behind a smokescreen of, well, smoke.
This raises the question as to whether or not employees who smoke are entitled to take a break from work to indulge their nicotine habit. You would be forgiven for thinking that this would be a decided issue in 2018, but it is not.
A recent decision of the Fair Work Commission (FWC) confirmed that an employer has every right to put in place a policy regarding where and when an employee may smoke. This includes prohibiting smoking on the employers premises and requiring that employees not utilise work time to take a smoke break.
In the matter before the FWC, despite the employer being incredibly patient with the employee, giving him multiple opportunities to comply with the smoking policy, the employee refused to comply. The employee considered that smoking was his right and that he was not required to comply with the employers policy.
The employer was left with no practical alternative than to issue the employee with a final warning. In addition to the final warning, the employer also approved a period of leave and paid for the costs of some counselling to assist the employee to quit smoking.
Despite all of the patience and assistance provided by the employer, the employee, in what the FWC described as a “breathtaking act of disobedience” again breached the employers smoking policy.
The employer, unsurprisingly, terminated the employment of the employee. The employee challenged the termination of employment in the FWC. The FWC upheld the termination of employment and in doing so said the following:
“And just as smoking is one of the largest causes of preventable death and illness in Australia, the devastating outcome for [the employee] was also preventable. All he had to do was comply with the policy.”
This case, and others which have gone before it, confirm that an employer can rely on a policy which imposes limitations on when and where an employee can smoke during working hours and/or on the employers premises. There is no unfettered right for employees to take breaks to smoke. Nor can employees ignore limitations identified by the employer about if they can or where they can smoke on employer premises.
If you require assistance in developing or enforcing a policy in relation to smoking at your workplace, or in relation to any other behavioural issue impacting on optimising your workplace, Please contact me on 3218 3014 or cheryl-anne.laird@mazars.com.au
Mr Victor Bajada v Trend Windows and Doors Pty Limited [2018] FWC 5937
Please note that this publication is intended to provide a general summary and should not be relied upon as a substitute for personal advice.
