Stubborn smoker loses unfair dismissal claim

By Portner Press on October 4th, 2018
  1. Employee health & wellbeing
  2. Smoking


In a recent decision by the Fair Work Commission (FWC), a commissioner upheld that a worker who flouted his employer’s no-smoking policy was not unfairly dismissed.

The employee of Trend Windows and Doors Pty Ltd. submitted that his dismissal was unfair as he had worked with the company for more than 12 years and that there were no issues with his work performance.

However, Fair Work Commissioner Leigh Johns upheld that the employer’s smoking policy “clearly [identified] the designated areas and designated times in which employees could smoke” which the worker “often wilfully breached”.

His “stubborn non-acceptance” and continuing breach of the policy which was “reasonable, clear and made known” to him “provided a valid reason for the termination of his employment”.

The commissioner noted that the employer had taken a patient approach to disciplining the employee, who thought that “because smoking helped him relax and because he found some aspects of his engagement with management stressful, he should be entitled to smoke where he liked and when he liked”.

The worker was spoken to and warned about his breach of the smoking policy on numerous occasions before he was eventually issued a final warning in “unequivocal terms”.

After this warning, the worker was granted about 10 weeks’ leave so he could receive psychologist treatments (paid for by the employer) to help deal with his smoking addiction.

About a week after his return, he breached the company’s smoking policy again, in what Commissioner Johns described as a “breathtaking act of disobedience”.

He went on to say that “It is often said that ‘smoking kills’, well on this occasion it killed the [worker’s] employment”.

“All he had to do was comply with the policy. He could continue to smoke so long as he did it during identifiable breaks and in designated areas. He chose not to do so.”

The commissioner found that the reason for the worker’s dismissal was fair and the case was dismissed.

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