An employer has been ordered to reinstate a worker who was sacked for defying his fatigue-management training by falling asleep on the job.The Fair Work Commission found that while the MSS Security Pty Ltd worker failed to properly assess his own fitness for work, which was “fundamentally inconsistent” with his role as a security officer, his dismissal was a “disproportionate response to his behaviour”.On 18 December 2014, the worker fell asleep while working a night shift at an Alinta Energy site in Port Augusta, South Australia, before being woken by an Alinta supervisor.
On 9 January, Alinta told an MSS manager that an MSS employee had fallen asleep at work.
On 27 January, MSS sent the worker – who had been working his normal shifts since the incident – a letter alleging serious misconduct, and sacked him two days later.
The worker claimed unfair dismissal, arguing he fell asleep “as a consequence of exceptional circumstances” and there wasn’t a valid reason for his dismissal.
He told the FWC his mother had been admitted to hospital for a possible serious injury, and he was unable to sleep before work because he was worried about her.
The employer argued the worker undertook “fit for work” training for managing fatigue and stress just 10 days prior to the incident, and he should have taken personal leave if he was unfit for work.
The worker knew sleeping on duty was considered one of its most serious offences and would result in dismissal, it said.
Its “standing instructions” stated that sleeping on duty “disables your ability to perform your role effectively and may place your own or others’ health, safety or welfare in jeopardy”.
Senior Deputy President Matthew O’Callaghan accepted the worker’s reason for being tired, but said this wouldn’t have made him incapable of properly assessing his fitness for work, particularly given his recent training.
“I accept [the worker’s] evidence that he 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 said.
“I have 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.”
Deputy President O’Callaghan found, however, that MSS was aware of the incident for weeks before it decided to discipline the worker, and let him continue working during that time.
“To the extent that MSS regard sleeping on duty to be such a serious issue, I have concluded that the absence of earlier action to investigate the matter was inconsistent with the significance it was later accorded,” he said.
“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.”
Deputy President O’Callaghan ordered the worker’s reinstatement, “primarily because the evidence confirms that [he] was able to continue to undertake his security officer duties without incident or concern being expressed by the client”.