MDC Legal lawyer Madeleine Brown discusses the legal ins and outs of workers taking smoke breaks, with reference to the case of Bajada v Trend Windows and Doors Pty Limited  FWC 5937, where an employee was sacked for flouting the employer’s smoke break policy.
With the sharp increase in restrictions around the sale, promotion and public consumption of cigarettes over the last 15 years, it’s no wonder there’s confusion around smoking in the workplace.
Are smoke breaks required by law?
No. There is no specific entitlement to take smoke breaks under the Fair Work Act 2009 (Cth) (FW Act). Modern awards and enterprise agreements may set out entitlements to meal and ‘rest’ breaks but not smoke breaks.
Is discriminating against smokers unlawful?
No. Being a smoker or smoking is not named as a protected attribute in federal or state discrimination law.
It is possible that a sufficiently serious addiction to smoking may be considered a disability under anti-discrimination legislation in the future. However, this argument has not yet been tested.
Can an employer say where and when an employee is allowed to smoke at work?
Yes. There is no right to take smoke breaks and it is up to the employer how they manage this issue. Employers can make their workplace “smoke free” if they choose to do so.
Smoking at work is generally managed under workplace policies and procedures, which set out matters such as:
1. Whether employees are allowed to smoke or take smoke breaks at work
2. Whether there are designated smoking and non-smoking areas
3. Use of company property e.g. smoking in company cars
4. Occupational health and safety hazards e.g. smoking around flammable substances
5. Employee assistance programs for smoking addiction
Can an employee be dismissed for smoking at work?
Each case will turn on its own facts.
However, in the recent decision of Bajada v Trend Windows and Doors Pty Limited  FWC 5937, the Commission held that smoking at work can be a valid reason for dismissal in circumstances where an employee is aware of, but continued to wilfully breach, a workplace policy.
Mr Bajada worked as a multi-skilled labourer for the employer for approximately 14 years. The employer’s smoking policy allowed for smoke breaks, but only during scheduled meal or rest breaks.
Mr Bajada was given 5 warnings for breaching the employer’s smoking policy by taking unauthorised smoke breaks from 2014 to 2017. Mr Bajada’s response to the warnings was that he thought that he should be entitled to smoke when and where he liked because smoking helped him relax when he found dealing with management stressful.
In October 2017, the employer offered Mr Bajada leave so that he could seek support to deal with his addiction to smoking. On his first day back at work following this leave, Mr Bajada was caught smoking outside his scheduled break time again, after which Mr Bajada left work without authorisation.
His employment was terminated a short time later for repeated breaches of the employer’s smoking policy and for leaving work without authorisation.
The Commissioner found that the employer’s policy was clear and reasonable and that it had been more than patient in dealing with Mr Bajada’s “breathtaking disobedience”.
Despite Mr Bajada’s long period of service and otherwise sound work record, Commissioner Johns dismissed Mr Bajada’s unfair dismissal claim:
 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.
MDC Legal provides advice regarding workplace policies and procedures and unfair dismissal claims. Please contact the author if you have any queries.
Madeleine Brown (BA LLB, University of Western Australia) is a Lawyer at MDC Legal. Prior to joining MDC, Madeleine had a varied professional background, which included working as a paralegal in private practice, volunteering in the community sector and most recently working at a union for employers. As a lawyer at MDC, Madeleine assists employees and employers with tailored solutions across a wide range of employment law matters from unfair dismissal and general protections claims to drafting contracts and interpreting modern awards and agreements. Contact Madeleine at [email protected] or connect via LinkedIn