Firing Sleeping Worker was Unfair, or Was It?
18th December 2014: MSS Security worker found asleep during his shift at a power plant in Port Augusta, South Australia, by a plant supervisor.
9th January 2015: Power plant reports the incident to MSS Security.
27th January 2015: After continue working normal shifts, MSS Security send letter to the worker alleging serious misconduct.
29th January 2015: Worker’s employment is terminated.
Worker claims unfair dismissal.
Worker: The worker claimed it was unfair to dismiss him as his falling asleep was the result of “exceptional circumstances” in that his mother had been admitted to hospital for a possible serious injury, and he was unable to sleep due to worrying about her.
The Company: MSS Security argued that the worker was fully aware of his obligation to manage his fatigue and had in fact attended training only 10 days before. Falling asleep was one of the most serious infringements of company policy as it “disables your ability to perform your role effectively and may place your own or others’ health, safety or welfare in jeopardy”. They argued that the worker had not notified his situation, nor sought to use his leave to obtain additional sleep.
The Fair Work Commission found that the worker failed to properly assess his fitness for work, which was “fundamentally inconsistent” with his duties as a security officer.
Senior Deputy President, Matthew O’Callaghan, accepted that the worker “was not asleep for very long. Nevertheless, the observation of [the worker] being asleep on duty by an Alinta Energy supervisor must undermine the standing of MSS as a security service provider with its client.”
He also “concluded that [the worker’s] wrong assessment of his fitness for work which resulted in him falling asleep represented a valid reason for the termination of his employment.”
However, he also expressed concern about the length of time MSS Security took to investigate and deal with the incident, stating “I have concluded that the absence of earlier action to investigate the matter was inconsistent with the significance.
He also observed that the worker had continued working without any other incidents.
“I consider that [the worker’s] summary dismissal must be regarded as harsh in that it was a disproportionate response to his behaviour given that he had worked for some six weeks after the incident without further complaint and had continued to work after MSS was, or should reasonably, have been aware of the matter.”
The worker was reinstated.
Incidents must be investigated with an urgency and thoroughness proportionate to the severity (or potential severity) of the consequences.
Where persons have negligently or recklessly carried out their duties, they should be dealt with in a prompt and transparent manner.
If you require assistance with your fatigue management or incident management processes, call 1300 657 279 or Contact Us by email.