The days of cigarette smoke wafting through the air of the average office are long gone. In Australia, employees are not expressly entitled to have a smoking break under Australian law. The right to smoke is not protected unless the employee’s smoking habit can be classified as a substance addiction. This means an employer has the right to set reasonable boundaries on when and where an employee may take a smoking break, subject to any binding agreements relating to an employee’s employment.

This article will consider:

  • what breaks you must give your employee under the law; and
  • whether you can dismiss an employee for taking smoking breaks while on the job.

What Breaks Am I Obliged to Give an Employee?

Your obligation as an employer to offer an employee rest or smoking breaks may arise on one of several grounds.

1. Workplace Health and Safety Laws

As an employer, you have an obligation to ensure a safe and healthy workplace. “Safe and healthy” encompasses more than a physically safe environment and extends to the emotional and psychological wellbeing of employees. You may need to offer your employees reasonable breaks to fulfil this obligation.

2. An Employee’s Employment or Enterprise Agreement

An employee’s employment agreement or enterprise agreement may also set out your obligations as an employer to offer your employees rest or smoking breaks.

3. Modern Employment Awards

Modern employment awards may also prescribe smoking breaks for particular industries or occupations. These are usually separate to rest breaks.

Modern awards set out employees’ and employers’ rights and obligations, in addition to the minimum requirements set out in the National Employment Standards.

Once you have determined the nature of your existing obligations under these laws and agreements, you can set reasonable boundaries on when and where a smoking break may be taken. This may form a part of your workplace’s employment policy. However, any policy you set on smoking breaks cannot curtail your employees’ rights under an award or agreement.

Can I Dismiss an Employee for Breaching My Smoking Policy?

It is possible to lawfully dismiss an employee on the basis that they have breached your workplace’s smoking policy. However, the lawfulness of such a dismissal depends on the facts and circumstances of the particular case. In particular, it depends upon evidence of whether the employee’s smoking habits can be classified as a substance addiction. In the case the employee has a substance addiction, this can be classified as a disability.

If an employee’s substance addiction is classified as a disability, an employee may be successful in an unfair dismissal claim for any dismissal based on that disability. It is therefore important to consider, before dismissing an employee for breaching your workplace’s smoking policy, whether their smoking can be considered a substance addiction.

Key Takeaways

Your obligation as an employer to offer your employees smoking or rest breaks may arise under:

  • workplace health and safety laws;
  • an employee’s employment or enterprise agreements; or
  • the relevant modern employment award.

However, a separate smoking break is not a specific entitlement at law. It is up to employers to set reasonable boundaries on smoking breaks in the workplace and place them into their company policies. It is possible to lawfully dismiss an employee for breaching a company’s smoking policy. However, if an employee’s smoking habits can be classified as a disability, they may be successful in an unfair dismissal claim against their dismissal. The court or tribunal will decide these questions against the particular facts and circumstances of the case. If you have any questions about smoking policies in your workplace, get in touch with LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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