The Sacked Smoker: Unfair Dismissal and an Employer’s Power to Mandate an Employee’s Behaviour

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A sacked smoker brought an unfair dismissal claim against his employer who operated a warehouse in Perth. So, can you terminate an employee for smoking?

The employer’s evidence was as follows:

– The contract of employment provided that the employee comply with policies and procedures and, if the employee failed to comply, this may result in termination of employment;

– There was an employee handbook with a “No Smoking Policy”, which said smoking was only permitted in dedicated areas;

– The “No Smoking Policy” together with a map detailing the areas in which employees could smoke was affixed to the office Notice Board (in the lunch room);

– There was a sign on a boundary fence identifying the only place to smoke, noting that the area was without seats and unsheltered; and

– There was a staff meeting in which the “No Smoking Policy” was discussed; and

– Repeated warnings and directions were given to the employee about smoking.

The employee was a serious smoker. In breach of the “No Smoking Policy”, he had smoked:

– getting out of the car even when on company property;

– when he was operating the forklift;

– smoking countless times in prohibited areas including, within one metre of the office door.

But the sacked smoker also committed other company policy breaches including, eating a pie and drinking a coffee in the warehouse, leaving a safety chain on the ground and ignoring rostered break times.

So, it wasn’t just the sacked smoker’s addiction to cigarettes; it was his bad attitude and “consistent pattern of behaviour that demonstrated a repeated disregard … [for the employer’s] reasonable policies, procedures and directions”, which meant his termination was valid.

In summary:

– “No Smoking Policies” should be reasonable and there needs to be some connection between overall health and safety objectives and the reasonableness of the policy (especially when the employer’s premises include large outdoor spaces);

– Employers should document how and when employees have been made aware of internal policies;

– Update contracts of employment to ensure employees must comply with internal policies and, if the employees fail to comply, they can be terminated.

Mr Cameron Hanson v Rhino Rack T/A Rhino Rack Perth [2019] FWC 1235 (25 February 2019)

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