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FWC reinstates sleeping security guard

Bill Fitzgerald

In this case summary, AREEA principal consultant Bill FitzGerald reviews a Fair Work Commission decision to reinstate a security officer who fell asleep on the job.

DESPITE acknowledging MSS Security’s Standing Instructions state that sleeping on duty will result in termination, the Fair Work Commission (FWC) found that reinstatement of a security officer was warranted due to failings in the employer’s investigation and termination process.

The MSS Security employee fell asleep while working as the sole security officer on night shift at the Alinta Energy site at Port Augusta. Six weeks later, he was terminated from his position.

In handing down his findings FWC Senior Deputy President O’Callaghan agreed that the employer had a valid reason for terminating employment, given the employee was the only security officer on duty, that he was discovered asleep by the company’s client, and that he had recently completed ‘fit for work’ training.

However, a key factor in DP O’Callaghan’s decision to reinstate was the employer’s delay in investigating and issuing the dismissal from the time the incident occurred, and that he had not been warned of his unsatisfactory performance prior to his termination.

DP O’Callaghan found the employer’s actions inconsistent with what he concluded was a ‘tardy investigation into the matter’ and commented that ‘if his behaviour in falling asleep whilst on duty was so significant, then it was a matter that should have been actioned much earlier’.

He added that it was ‘indicative of unfairness’ that the company made the decision to sack him before putting any allegations to him.

On reinstating the employee, DP O’Callaghan ordered that he be compensated for lost wages, but with a 75 per cent discount for his misconduct.

Click here to view the full decision.

Implication for employers

This case is a reminder that a poorly executed workplace investigation and termination can be time consuming and costly for an employer. AREEA recommends that advice be sought prior to undertaking a workplace investigation, particularly if termination is contemplated.

AREEA’s workplace consultants can conduct independent investigations where appropriate. To discuss further, speak with an AREEA consultant today.

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