URGENT Advice req re smoking at work.

[Oakie]

Just trying to remember all the comments that popped up so far and respond:

Smoking = addiction = disability = implications under the Human Rights Act. This has not yet been tried in court but is arguable.

Smoke break. If they don't want you to stop for a smoke when you are supposed to be working they are quite safe on that one as long as no one else takes a 5 minute break just for a spell during the day. What happens if you say I can smoke and work at the same time I don't know.

Is it 'the look' they are worried about? The image of the greenskeeper with a fag hanging out of his mouth might be what they're not keen on.

Breaks. There has not been anything in legislation defining breaks. They would need to be mentioned in your employment agreement for you to be entitled. Without that you aren't entitled to one as of right although there was legislation floating around pre-election making breaks compulsary. I'm not sure what's happened to that.

Employment Relations Act. I keep thinking of a test often used when employment cases get to court ... "was this an action that a reasonable employer would have taken?"

Personally I think their approach is unreasonable but is probably defendable in law. It would have been nice of them to say why they have made this change and perhaps that is a question that can be asked.

I'd be interested to hear how this proceeds so let us know huh?

[Owl]

(being as I am the only empolyee who smokes it only effects me

You may have an out cowboyz, if this action is directed at you only. Do your employer’s intend to be consistent and stop other staff from smoking?

I have a very reliable source that says you’re not the only worker there that smokes during working hour!!!

[mynameis]

Leaving all the waffle behind about the past, them not being fair ect..ect..ect.. And the smoke free zone because it does not apply in this case as it isn't a smoke free area.

Alright the correct answer to this is YES they can fully enforce the no smoking during working hour's policy on all employees therefore you're fucked. It is as simple as that.

In terms of breaks, no employers aren't legally obliged to give anyone breaks, including a LUNCH break. The ERA 2000 doesn't state employers have to give a break. However there are suggested guidelines by Labour department.

Look at it this way, which is how "they" (your employer) looks at it:

You're being paid to work and therefore should not be spending half an hour, 1 hour per day smoking, whatever the case is. And if you continuously do so you can be performance managed out, easily, very easily.

Time to quit the fag Anything else just ask.

[cowboyz]

Thats the guts I was looking for. Just time to harden up then.

I was speaking to the dept of labour and as of 1st april it will be law that you are to have a 10 min break every 2 hours worked and a half hour unpaid lunch break if work more than 5.5 hours.

So I got 2 weeks to work until I get a afternoon smoke break.

[mynameis]

Yeap during your breaks you can smoke.

On the flip side of this whole thing you should be happy you have a job !

What handicapp are you on ?

[cowboyz]

i am not actually that good a golfer. People think I am cause I hit the ball a long way. I tend to drive about 250-270 and then fuck everything up to end up with bogie. On a good round I get a few birdies but overall I shoot in the mid 80s. My official handicap is only 21 cause I never actually play a full round or competitions.

I can prep a demon green though.

[mynameis]

Mid 80's is good mate ! Have you done the full apprenticeship and are a fully qualified green keeper?

Have you looked at the Auckland market, good money over here is what I hear?? I take it you wouldn't move here

[JATZ]

Smoking = addiction = disability = implications under the Human Rights Act. This has not yet been tried in court but is arguable.

Soooo, does this mean I can apply for a sickness benefit ?

Back on topic, tell them to lay off, after all you havn't got long to live

[mikeey01]

I got a notice today that says lots of stuff but it is just this point that has the biggest effect on me that I want a way out of striaght away.

4. Smoking. No smoking during paid working hours. Smoking is permitted during your breaks only.
This notice was given to me this morning.

Ok firstly, do you have a copy of your contract with your employer?
Secondly did it say it was just a "Notice" or does it say something else?

[Gareth51]

In terms of breaks, no employers aren't legally obliged to give anyone breaks, including a LUNCH break. The ERA 2000 doesn't state employers have to give a break. However there are suggested guidelines by Labour department.

.

Very true but just think how many employees you would have if you tried to write that into their contract

[gatch]

How the fuck does smoking count as a disability, WHEN YOU START AND CONTINUE TO POISON YOURSELF BY CHOICE, in the face of common sense and medical science..

[T.W.R]

Are you on an individual employment agreement or a collective agreement?
either way any thing stated in the employment agreement can't be changed or have addition of clauses without agreement of all parties. If it's a collective agreement there has to be a detail on how an existing agreement can be changed.
Going to be a bit of paperwork shuffling for them

[mynameis]

Lots have mentioned about agreements/contracts ect..ect.. Good thought however you really do need to understand how employment contracts works. (The law can catch you out in many ways) It's not as simple as what's printed black and white on paper.

If there's a simple clause in his contract which states "you will follow all reasonable instructions laid out by the employer" then he can be performance managed out if he continues to smoke during working hours.

There's lots of finer points you can pull out and argue endlessly and quiet frankly meaninglessly, in his case his employer is in a position to enforce what they have decided to.

Look at it from a simple plane perspective without getting to complicated guys: working hours you're meant to be working not taking breaks or smoking and blowing time away regardless of whether you get the job done..ect..ect.. and 101 other excuses people come up with.

At the end of the day his case is simple and he has to follow what has been laid out by his employer and quit smoking during working hours.

When unsure of cases like this take a commonsense approach and 9 out of 10 times you should be able to work out the answer yourself. You can always try and pull out smarty points from the hat but how it works is simple. The question you'd pose in this case is:

Is it reasonable for someone to smoke at work during working hours (for when you're getting paid) ? Answer is NO.

If for some reason he decides to pursue this down the legal track, he doesn't stand a chance.

[Max Preload]

The question you'd pose in this case is:

Is it reasonable for someone to smoke at work during working hours (for when you're getting paid) ? Answer is NO.

Despite being a non-smoker (never have, never will) I have to disagree. As long as it doesn't affect his work performance I'd disagree. If he's smoking while he works, in an area that is not designated smoke-free, it should have absolutely no bearing.

As for no statutory breaks, I find this unbelievable. My brief amount of research on the subject (2 minutes on google) appears to lay the blame at the feet of the 'evil National government' and the 1991 ECA. However, I note that the 'friends of the workers party' Labour didn't much care to reintroduce the award with the 2000 ERA.

Fortunately I'm self-employed, skilled and in demand so I take my breaks when I damned well feel like it. But even before becoming self-employed I made sure I had all the breaks I needed and if anyone had attempted to tell me not to, they'd have been told to get stuffed. I can't believe anyone would agree to working without breaks.

[mynameis]

Despite being a non-smoker (never have, never will) I have to disagree. As long as it doesn't affect his work performance I'd disagree. If he's smoking while he works, in an area that is not designated smoke-free, it should have absolutely no bearing.

It's not about where he smokes, as it's already established that it's not a smoke-free zone so effectively he can smoke pretty much anywhere on the course. (When he's on a break)

Yes that's one way of looking at it which is mostly the employee view point however employers usually have a different view towards it. It's what's deemed reasonable, in his case they obviously think it's not (for whatever reason it is) therefore the call for change.

Like I said you can argue endlessly about it, at the end of the day he has to quit smoking during working hours or there may be negative consequences.