Managing “smoko” breaks and the risks arising from smoking in the workplace remains a troubling issue for many employers.

Research in 2013 by the Ohio State University established an average cost to employers of absenteeism alone due to smoking breaks of more than $3,000 per annum, without taking into account the costs of increased medical absences, operational risks at site and other considerations.

Employers wanting to address a “smoko culture” can take heart from two Fair Work Commission unfair dismissal cases that highlight the rights of employers to manage the incidence of smoko breaks and the operational risks arising from unauthorised smoking in the workplace.

Cameron Hanson v Rhino Rack T/A Rhino Rack Perth

Mr Hanson was employed by Rhino Rack as a storeman at their premises in Western Australia.

Rhino Rack had a policy in its Employee Handbook with respect to smoking in the workplace which stated that employees must “… smoke in designated areas during meal breaks only and never in doors within Rhino Rack premises…”

In October, 2017, the employer attached a copy of the policy to the warehouse notice board together with a map showing the designated smoking area.

In early 2018, the employer noticed a group of employees smoking outside the designated area and called a meeting to discuss the smoking policy and the designated area.  A verbal warning was given for breach of the policy.

On 6 April, 2018, Mr Hanson was observed smoking whilst driving a forklift. On various other occasions he was observed to be smoking in breach of the policy, and was given a letter on 25 May, 2018 about unauthorised smoking to which he failed to respond.

On 17 August, 2018 Mr Hanson was given a show cause letter for various smoking policy and other breaches.

By an email dated 20 August, 2018 Mr Hanson admitted “… for the most part I can’t say I’m innocent…”

On 21 August, 2018 Mr Hanson was given a termination letter, and he subsequently made an Application for unfair dismissal.

In finding that Mr Hanson’s employment was terminated fairly, Deputy President Binet observed:

“While Mr Hanson’s conduct may not in isolation have justified if dismissal… I am satisfied that [his] conduct involved, in aggregate, a consistent pattern of behaviour that demonstrated a repeated disregard for and refusal to comply with Rhino Racks lawful and reasonable policies, procedures and directions.”

Victor Bajada v Trend Windows and Doors Pty Limited

The employer was a manufacturer and supplier of timber and aluminium windows and doors. The employee was a labourer and window assembler.

The employee was observed to be smoking in breach of the policy on 22 November, 2014, 25 November, 2014, 24 June, 2015 and 24 October, 2015. On each occasion he was given a disciplinary document that he refused to sign.

On 3 October, 2017 and following, Mr Bajada refused to follow directions to change to another assembly line, and then left the work site without permission. After some meetings about his behaviour he was issued a final warning on 31 October, 2017.

On 22 January, 2018 he was observed smoking in breach of the workplace policy. When confronted about it, he replied, “I am not a slave and I am not going to put up with this again.”After he failed to attend a meeting to discuss the issue he was issued a termination letter dated 7 February, 2018, and he subsequently made an Application for unfair dismissal.

In finding that Mr Hanson’s employment was fairly dismissed, Commissioner Johns observed:

“The Applicant’s repeated and wilful breaches of the smoking policy ultimately led to the termination of his employment. It is often said that “smoking kills”, well on this occasion it killed Mr Bajada’s employment. And just as smoking is one of the largest causes of preventable death and illness in Australia, the devastating outcome for Mr Bajada was also preventable. 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. In the face of the policy which was reasonable, clear and made known to the Applicant, his continuing breach of it provided a valid reason for the termination of his employment.”

Managing Smokos

The cases make it clear that employers are entitled to manage the incidence of smoko breaks and the operational risks arising from unauthorised smoking in the workplace.

However the employer must also ensure that its expectations are clearly stated and applied consistently and fairly.

An employer dealing with an ongoing and widespread problem with smokos might start the process by:

  1. Engaging with workers informally about its concerns and expectations;
  2. Hearing their employee’s point of view and where practicable, designating a smoking area;
  3. Developing a lawful policy that meets its business requirements and, where reasonable, the requests of its workforce; and
  4. Enforcing it consistently over time, taking disciplinary action for serious or persistent breach.

For assistance in managing 'smokos' and other challenging issues in the workplace, please contact our experienced employment lawyers at McKays Solicitors.