An employee was observed by another employee using an electronic cigarette in the workplace. The agency considered its smoking in the workplace policy was a lawful and reasonable direction and determined that the employee had failed to comply with a direction by smoking in the workplace.
The employee sought review by the Merit Protection Commissioner of the determination and the sanction of a reprimand. The employee did not dispute the use of an electronic cigarette but considered the agency should have handled the matter differently.
The Merit Protection Commissioner noted that for a direction to be enforceable it must be clear and capable of being complied with, and written in the language of command. If a policy document is to have the force of a direction, the document must make clear that elements of the policy constitute a direction and that the consequences of failing to comply may represent a breach of section 13(5) of the Code of Conduct.
While the agency's policy directed employees about their responsibilities if smoking outside agency premises, nothing in the policy constituted a direction that employees should not smoke in the workplace. In the Merit Protection Commissioner's view it was not necessary for the agency to direct staff not to smoke in the workplace. It is clear that smoking in the workplace is prohibited for reasons both of worker health and safety, and public health policy, and has been for a very long time. Accordingly, the Merit Protection Commissioner recommended that the finding that the employee had breached a direction be varied to a finding that the employee failed to act with care and diligence.
The Merit Protection Commissioner accepted the employee's actions were accidental and not deliberate behaviour in contravention of the no smoking policy. The employee was contrite and had taken steps to ensure the behaviour would not be repeated. The Merit Protection Commissioner agreed with the agency that the appropriate sanction was a reprimand.