FEDERAL COURT OF AUSTRALIA EMPLOYMENT LAW - Termination of employment - Employment terminated because employee found smoking at work - Policy of employer forbidding smoking on work premises - Policy known to employee and previously obeyed by him - Employee "lit up without thinking" while working in fruit and vegetable storage area at 5.30am - Termination treated as automatic by store manager - Whether termination for a valid reason - Whether reinstatement impracticable. Industrial Relations Act 1988 (now Workplace Relations Act 1996) - ss 170DE and 170EE. MORRIS TISDELL v WOOLWORTHS LIMITED NI.1067 OF 1997 JUDGE: WILCOX J DATE: 3 SEPTEMBER 1997 PLACE: SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI.1067 of 1997 BETWEEN: MORRIS TISDELL Applicant AND: WOOLWORTHS LIMITED Respondent JUDGE: WILCOX J DATE OF ORDER: 3 SEPTEMBER 1997 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for review be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI.1067 of 1997 BETWEEN: MORRIS TISDELL Applicant AND: WOOLWORTHS LIMITED Respondent JUDGE: WILCOX J DATE: 3 SEPTEMBER 1997 PLACE: SYDNEY EXTEMPORE REASONS FOR JUDGMENT WILCOX J: This is an application for review of a decision of a Judicial Registrar ordering the reinstatement of the applicant, Morris Tisdell, to his employment with the respondent, Woolworths Limited. I read the Judicial Registrar's reasons for decision yesterday, in order to acquaint myself with the case. Of course, this was done on the basis that the findings were not binding on me and it was open to the parties to adduce additional evidence as they wished. In fact, with the exception of two matters, the parties have been content to rely on the evidence given before the Judicial Registrar. Indeed, counsel for the applicant for review, Woolworths, told me his client had no quarrel with the Judicial Registrar's findings of primary facts. That being so, the argument was largely based upon those findings, with some supplemental references to the transcript of the hearing before the Judicial Registrar. The first of the exceptions to which I referred is that Woolworths adduced evidence from Deborah Salkeld, the manager of the store in which Mr Tisdell had been employed, at Revesby, as to that store's employment needs. This was adduced in aid of the proposition that it would be impracticable, or at least difficult, to accommodate Mr Tisdell at Revesby, without causing adverse effects to some other employee. However Ms Salkeld said she had made no inquiry in relation to the position at other Woolworths' stores. The second exception was a medical certificate tendered on behalf of the applicant. It was given by Dr Edward Summerbell, a general practitioner in Revesby, on 28 August 1997. The certificate says Mr Tisdell was seen by the doctor that day and goes on: "He stated he had not smoked for four weeks and wanted to give up smoking. He is on Nicobate patches, one daily. He has no sign of nicotine stains on his fingers when seen today." This evidence is encouraging; as Mr Tisdell admitted to the Judicial Registrar, his smoking habit was very dangerous to his health. It was certainly the cause of the action that resulted in this litigation. I express the hope that Mr Tisdell will persevere and succeed in beating his addiction. But I do not put any particular weight on the certificate. Mr Tisdell is now some fifty-six years of age; apparently he has been smoking heavily since he was about fourteen. It remains to be seen whether he will be successful in giving up the habit. I do not think it necessary to go into the facts in any great detail. I am content to adopt the views expressed by the Judicial Registrar, with one exception. The exception is that the Judicial Registrar was critical of the extent of the opportunity given to Mr Tisdell to defend his conduct. He suggested, without reaching any conclusion on the matter, that Woolworths may have failed to comply with s 170DC of the Industrial Relations Act 1988, as the legislation then was. I do not think there was a failure to comply with s 170DC. I think Ms Salkeld gave Mr Tisdell a clear intimation as to the incident in relation to which he was being interviewed. He understood, from the outset, that the problem was that he had been caught smoking by another employee (Mr Finn) earlier that morning. Ms Salkeld put to him that he knew this was against company policy. He readily agreed. Various company documents were referred to; he admitted he knew of them and knew they forbade smoking. According to the evidence of Mr Stephen Mayers, the assistant manager of the store, after Mr Tisdell was first interviewed there was a break during which Ms Salkeld spoke to Ms Lisa Murphy, another Woolworths employee (at head office, I understand). Mr Tisdell was then brought back into Ms Salkeld's office and was asked, in effect, whether he had anything to say as to why he should not be terminated. He answered "no". I think Mr Tisdell knew what the interview was about; he knew this was his opportunity to say whatever he wished about the incident, and he did so. There are other matters he might have put, had he thought of them or, perhaps, been more experienced in dealing with problems such as this. But he did not fail to put them because of any lack of opportunity. I think the real question is whether this termination falls within s 170DE(1) of the Act. In relation to that matter, I share the view expressed by the Judicial Registrar. In saying that, I wish to make a few things clear. First, any employer's policy prohibiting smoking in the workplace will always be a defensible policy. Indeed, many people would go further than that and say any employer should have such a policy, should explain it to its employees and enforce it. As I commented to counsel during the course of argument, I am upset by cigarette smoke in my immediate vicinity, and I tend to have an antipathy towards smoking, rather than sympathy for smokers. Accordingly, I welcome establishments having a no smoking policy. Plainly, if there is to be enforcement, there cannot be excessive leniency in the way people are treated when they infringe the policy. There will certainly be occasions, particularly in a food store, where it would be entirely reasonable to determine there should be no "second chance". An obvious example is the case of a person smoking whilst preparing food. This is not only unaesthetic but unhealthy. If ash ends up in food that is served to or displayed for customers, it may cause justifiable customer objection with adverse consequences for the goodwill of the business. Similarly, if an employee were to smoke whilst in contact with customers, in the store or at a checkout counter, or even in the office of the company, this would also be highly objectionable. If an employee smoked on occasions different from these, but showed an element of defiance in doing so; or even if not defiant, so unthinking that it happened again and again, that would certainly justify an employer taking a strong view and dismissing the employee. The circumstance that causes me to believe the dismissal was not for a valid reason in this case is that it represented an automatic application to Mr Tisdell of the maximum penalty available to the employer. As I have said, I do not quarrel with the view that smoking under many circumstances should be regarded as a sackable offence; but I think it is not valid to treat smoking, under all circumstances, regardless of any mitigating factors, as an offence requiring the dismissal of the employee. In the present case there were a number of mitigating circumstances. First, at the time, Mr Tisdell had worked for Woolworths for over four years. Although he was a heavy smoker, there was no evidence he had ever previously been found smoking within the store. He gave evidence he had never done this; he had always gone outside. On the occasion in question he said he lit up the cigarette in an unthinking way. This was of course a wrong thing to do, but I have no difficulty in accepting that a person might, on a particular occasion, do something without thinking what he was doing. Secondly, when he found Mr Tisdell smoking, Mr Finn asked him whether he was smoking. Mr Tisdell instantly said "yes". When he was interviewed about the matter by Ms Salkeld, he did not attempt to deny his offence. I suppose this would have been possible, putting his false word against Mr Finn's word. But Mr Tisdell immediately admitted his offence. His attitude throughout was that he had smoked, and should not have done so. He admitted everything and expected there would be some disciplinary action. There was some dispute before the Judicial Registrar whether the word "termination" or the term "sackable offence" was used. The dispute does not seem to me to be material. It is clear Mr Tisdell acknowledged that he knew smoking was an offence for which he could be dismissed; not necessarily that he knew he would automatically be dismissed. The relevant smoking did not occur in any of the aggravated circumstances to which I have referred. There is no suggestion that any food was contaminated. No food was being prepared at the time. There were no customers in the vicinity. It was only about 5.30 am, and apparently very few employees were about. Mr Tisdell's evidence was that he was not near any boxes at the time: in other words, he was not standing in an area where a lighted cigarette might perhaps ignite cardboard boxes and cause a fire. This evidence was not challenged, although Mr Finn would have been able to say where Mr Tisdell was, if he had incorrectly reported that matter. Mr Finn was not called. When one adds these factors together, there are substantial mitigating factors. I repeat that what Mr Tisdell did was wrong; it was against company policy and he knew that. But there is no suggestion of deliberate defiance of the policy. He did it without thinking. Of course he should have thought about it and, if he were to repeat the offence, I think he could expect to be dismissed and I would regard that as a valid decision. I do not, however, think it is valid to apply a policy in a way that makes no allowance whatever for the surrounding circumstances. I think, if any allowance had been made in this case, Mr Tisdell would have been given a lecture as to the seriousness of his action and a final warning, probably one recorded on his personnel record so that it would be known even after a change in management of the store. Mr Tisdell would have been made to understand that, if he was caught again, perhaps almost regardless of the circumstances, he could expect to be dismissed. I do not think it was valid, however, to dismiss him for a first offence under these circumstances. Mr Warren put to me that the effect of upholding Mr Tisdell's case would be that every Woolworth's employee was entitled to a second chance. The suggested result would be a little like the old doctrine about dangerous dogs, that every dog is entitled to a first bite. I believe that is no longer the law. I do not think this is the consequence of my view. As I have said, this is a rather exceptional case. It will often be the case that an employee who smokes on the job is smoking in one of the situations I have mentioned, or does so deliberately, defiantly or repetitively. If there is another case on all fours with Mr Tisdell, then it would not dismay me if Woolworths treated this case as a precedent. I venture to think there will probably not be many such cases. I make one other observation, although it has played no part in my decision. I note from the transcript that Ms Taylor, an occupational health and safety officer, said Woolworths produced a video about smoking in about 1992, apparently following an earlier case where an employee had been reinstated. However, it appears from the evidence this was never shown at the Revesby store. It may be useful for the company to renew its education campaign about the evils of smoking, in particular at work. I should add, because I did not previously refer to it, that I have not overlooked Ms Salkeld's evidence about the problem in finding a position for Mr Tisdell at Revesby. It would be unfortunate if another employee were displaced. It is a matter for Woolworths, not for myself, but a better solution may be for Mr Tisdell to be offered a job at a different store. This would have the advantage of avoiding any possible embarrassment to Ms Salkeld and Mr Mayers or any perception by other staff that those persons had been overruled. I have no doubt there are numerous other Woolworths' stores within reasonable travelling distance of Mr Tisdell's home at Revesby. Although, no doubt, he would prefer to work locally, I suspect that, given a choice, he would be willing to take a position at one of the other stores rather than not have a job at all. The parties can be left to work this out. I am not satisfied that reinstatement with the company is impracticable. I dismiss the application for review and affirm the decision of the Judicial Registrar. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 3 September 1997 Counsel for the Applicant: A Rogers Counsel for the Respondent: R S Warren Solicitor for the Respondent: Retail Traders' Association of New South Wales Date of Hearing: 3 September 1997 Date of Judgment: 3 September 1997