Security surveillance officer wins legal fight with boss after being sacked for falling asleep on the job
A security guard who was sacked after falling asleep on the job received “harsh and unfair” treatment from his boss, the Fair Work Commission has found.
Chanaka Ranawakage was employed casually by MSS Security, which provides security services across Australia, for about a year before he was made redundant.
He was working the night shift from 7pm to 5am at Sydney Trains, a NSW government agency, and was fired after falling asleep at work on October 13 last year.
However, he appealed to the FWC the following month, claiming he had been unfairly dismissed.
On Tuesday, FWC deputy chairperson Judith Wright cited her findings, saying there was a valid reason for Mr Ranawakage’s dismissal.
“However, I have determined that Mr. Ranawakage’s dismissal was harsh and unfair for the reasons that his conduct was not intentional and that he had a positive employment history,” he said.
“I decided that the decision to pay compensation was appropriate.”
In total, three allegations were made: that he did not go on patrol for a period of time, that he failed to provide assistance to his partner, which put them at potential risk, and that he was observed sleeping in his personal vehicle while on duty broadcasting a sports match on his mobile phone.
Ms Wright found that the third allegation was substantiated but the other two were not.
He stated that MSS had no concerns about Mr Ranawakage’s performance prior to the incident.
“So it seems an unfortunate coincidence that Sydney Trains raised concerns about SSOs sleeping with MSS at work and (a colleague) observed Mr Ranawakage sleeping at work,” he said.
Mr Ranawakage claimed that he was on break while he was sleeping but did not record this break in his shift log.
“Although Mr Ranawakage did not record the break, there is no indication that he took a break at an earlier time, so I accept Mr Ranawakage’s evidence that he did take a break when he fell asleep,” Ms Wright said.
“I find that there is no prohibition on TOAs watching sports during the break, provided they are able to respond to warnings. However, I do not accept that Mr Ranawakage was allowed to sleep during the break, as this is contrary to MSS and Sydney Trains’ requirement that TOAs be alert and responsive at all times.”
Ms Wright concluded that the termination was not proportionate to the seriousness of the misconduct.
“I am satisfied that Mr Ranawakage’s dismissal was harsh and unfair. I am therefore satisfied that Mr Ranawakage was unfairly dismissed,” he said.
MSS was ordered to pay Mr Ranawakage five weeks’ wages as compensation, as well as pension minus tax in lieu of reinstatement.
