News - News Articles

Smoking no excuse: Unfair dismissal claim rejected

Submitted on Thursday, 11th October 2018

The Fair Work Commission (the Commission) has found an employee’s ‘repeated and wilful breaches’ of a company’s smoking policy provided a valid and fair reason for the termination of their employment, highlighting the importance of well communicated policies for businesses. The Commission acknowledged the long term employee was a hard worker who had received no complaints for his performance performance, however this was not enough to convince them the dismissal was harsh and unwarranted.

The full-time worker commenced employment with the window and door supplier in June 2004, and became a leading hand in 2006. In November 2014 the employee was twice caught smoking during work hours, and was issued with a ‘Disciplinary Document’ following a discussion each time, both of which he refused to sign. There were further incidences of smoking during work hours in June and October 2015, and the employee received further ‘Disciplinary Documents’ on each of these occasions.

In October 2017 the business placed a notification on the factory notice board informing all staff of the smoking policy and requirement for employees to smoke in designated areas and at designated times. Following an incident where the employee refused to work in a particular area as directed by his manager, and his subsequent unauthorised absence after leaving the work site without permission, a disciplinary meeting was held with the employee. During this meeting, his refusal to follow reasonable directions, unsatisfactory behaviour conduct and ongoing smoking breaks outside of scheduled breaks were discussed. The business explained the smoking policy to the employee and told the employee that ‘any further breach of the policy might lead to the termination of his employment’. He was issued with a final warning letter which also encouraged the employee to take some leave to assist with quitting smoking. The business offered the services of the Employee Assistance Program and provided the employee with a number of psychologist treatments.

Within days of the employees return to work in January 2018, their manager observed them smoking during work hours. The manager addressed them and the employee left the site stating he was ‘not a slave’ and was ‘not going to put up with this again’. The business held a meeting with the employee where he admitted to smoking on work time. A follow up meeting was scheduled, and as with every other meeting, the employee was offered to bring a support person. During the follow up meeting the employee was provided with a ‘last opportunity to provide reasons why his employment should not be terminated’. Despite being encouraged to resign by the Union representative, the employee refused, and was ultimately dismissed by the business.

As the Commission considered submissions from both parties at a Determinative Conference, they noted the excuses provided by the Applicant to be a ‘failure to take responsibility for his own actions’ and an attempt to ‘lay blame with others’. The Commission was satisfied the business developed a smoking policy to ‘clearly identify the designated areas and designated times in which employees could smoke’, and ensured the employee was aware of the policy. Through his ‘stubborn non-acceptance’ of the policy, he often ‘wilfully breached the policy’.

The business was praised for the ‘patient’ approach they took when handling the repeated policy breaches. Numerous warnings, and a well communicated policy, enabled the Commission to reject the employee’s unfair dismissal claim, recognising the ‘devastating outcome’ for the employee could have been avoided had he complied with the policy.

Good HR practices help to ensure your business is legally compliant, attracts high-quality staff, increases output and efficiency and creates a strong and positive workplace culture. Attend our New to Human Resources training course to increase your knowledge of effective policies, performance management techniques and payroll and record keeping requirements.

Written by Megan Wood, Senior Workplace Relations Advice Line Advisor

Fair Work Commission Decision [2018] FWC 5937

Add comment

Login or register to post comments