News 14 March 2019

Breaching No Smoking Policy constitutes valid reason for dismissal

The Fair Work Commission (the Commission) has upheld the dismissal of an employee for smoking in the workplace, repeatedly breaching his employer's No Smoking Policy. The Commission found the policies and directions prescribed to be reasonable and lawful in the circumstances, and the employee’s pattern of behaviour demonstrated a consistent disregard and refusal to comply with the policy, forming a substantial reason to warrant dismissal.

Background

The employee’s contract of employment expressly required him “to ensure he knew” the employer’s Occupational Health and Safety policies and procedures and agreed to ‘comply and adhere to them’. The organisation’s ‘No Smoking Policy’ instructed employees to use the designated smoking areas and outlined the prohibition of smoking within buildings and in close proximity to access points such as doorways and windows.

The employee was observed on multiple occasions smoking outside of the designated smoking areas including whilst driving a forklift and within 1 metre of a building entrance. In addition, the company also enforced a strict no food and beverage in the warehouse rule, which the employee also breached on multiple occasions. He was given both verbal and written warnings on all occasions. He was invited to attend a show cause meeting where he was asked to respond to the allegations of smoking outside designated areas and other policy breaches. In his response, the employee stated ‘…for the most part I can’t say I’m innocent...’. The company proceeded in terminating his employment, paying out his notice in lieu.

He subsequently lodged an unfair dismissal claim, alleging his dismissal was unfair as he was unaware the policy would be enforced and claiming he was obliged to only try to follow company policy, not to actually follow it. In addition, he believes that other employees were also observed breaching the No Smoking Policy yet only he was dismissed due to his supervisor’s personal vendetta against him.

Decision

The Commission was ‘satisfied that the dismissal was proportional to the persistent nature of conduct and was not in all the circumstances harsh, unjust or unreasonable’. Deputy President Binet conceded that whilst the employee’s conduct in isolation may not have justified his dismissal, his repeated disregard and refusal to follow policies provided a valid reason for his termination. It was accepted that the policies and procedures implemented by the employer were reasonable and lawful in the circumstances.

In his defence, the employee’s supervisor produced a written letter of warning that he issued to a work colleague who also breached the No Smoking Policy, maintaining the employee was not specifically targeted for his behaviour.  He also maintained whilst smoking and consuming food or drinks in the warehouse may have been previously tolerated, he (the supervisor) had specifically been employed to ensure appropriate policies and procedures were put in place and complied with.

Lesson to Businesses

This case highlights the importance of reasonable and lawful organisational policies and procedures to support an employer should an unfair dismissal claim arise from termination. 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 to increase your knowledge of effective policies, performance management techniques and payroll and record keeping requirements.

Written by Natalie Antoniadis, Graduate Workplace Relations Advice Line Advisor

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

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