copyright  |  disclaimer  |  privacy policy  |  print ready

« back

Employee reinstated despite breaching no smoking policy

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 82, 14 June 2005

An employee who breached his employer’s No Smoking Policy has been reinstated by the Industrial Relations Commission of NSW with full back pay.

Perfection Diaries Pty Ltd introduced a No Smoking Policy following a fire at its premises. The No Smoking Policy imposed a total prohibition on an employee bringing cigarettes into the workplace.

Russell Finn, an employee with over four years’ service, and who had never received a warning for breaching a company policy, was summarily dismissed by Perfection Diaries for brining a pack of cigarettes onto the worksite. In the company’s opinion, this act by Mr Finn constituted serious and wilful misconduct.

Whilst Mr Finn had brought the cigarettes onto the worksite, he had not ‘lit up’ on the worksite. Rather, he simply removed the cigarettes from his bag, put them in his pocket, and smoked one or more cigarettes at a location away from the worksite.

In reaching its decision, the Commission was highly critical of Perfection Dairies for introducing the No Smoking Policy by decree, without consulting employees or their representatives.

The Commission also found that the No Smoking Policy was not directly communicated to Mr Finn due to his absence from work on the day the policy was announced.

The Commission further commented that the rigidity of the No Smoking Policy, in placing a blanket restriction on employees bringing cigarettes into the workplace, was plainly absurd.

HR Tips

• When introducing workplace policies, employers should, to the extent that there is room for it, consult with employees and their relevant unions about the proposed policy. Employers should also ensure that every employee is educated about the policy and the consequences of breaching it. Further, employers should avoid overly rigid workplace policies.
• Employers are reminded that in cases of summary dismissal, the employer bears the onus of proving that the employee is guilty of serious and wilful misconduct. This can often be difficult to prove.
  
  

Jason Donnelly
Senior Associate
Australian Business Lawyers