A security surveillance officer who was sacked after he fell asleep on the job received “harsh and unjust” treatment from his boss, the Fair Work Commission has found.
Chanaka Ranawakage was employed casually by MSS Security, which delivers security services across Australia, for about a year before his dismissal.
He was working the night shift from 7pm to 5am for Sydney Trains, which is a NSW government agency, when he was fired last year after falling asleep at work on October 13.
But he lodged an application with FWC the following month, alleging he had been unfairly dismissed.
On Tuesday, FWC deputy president Judith Wright handed down her findings, saying there was a valid reason for Mr Ranawakage’s dismissal.
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“However, I have determined that Mr Ranawakage’s dismissal was harsh and unjust for reasons which include that his conduct was not deliberate and he had a favourable employment record,” she said.
“I have decided that an order for payment of compensation is appropriate.”
In total, three allegations were made — that no patrols were conducted for a period, that he failed to provide assistance to his partner which placed them at potential risk, and that he was observed asleep inside his personal vehicle while on duty with a mobile phone streaming a sports match.
Ms Wright found the third allegation was substantiated but the other two were not.
She noted MSS had no concerns about Mr Ranawakage’s performance prior to the incident.
“It therefore appears to be an unfortunate coincidence that Sydney Trains raised concerns about SSOs sleeping at work with MSS and that (a colleague) subsequently observed Mr Ranawakage sleeping at work,” she said.
Mr Ranawakage claimed that during the period that he was asleep he was on a break, but he did not record the break in his shift log.
“Although Mr Ranawakage did not record the break, there is no indication that he took any breaks at an earlier time so I accept Mr Ranawakage’s evidence that he was taking a break when he fell asleep,” Ms Wright said.
“I find that there was no prohibition on SSOs watching a sports match while on a break provided that they were able to respond to alerts. “I do not, however, accept that Mr Ranawakage was permitted to sleep during a break as this is inconsistent with the requirement of MSS and Sydney Trains that SSOs be alert and responsive at all times.”
Ms Wright concluded that termination was not proportionate to the seriousness of the misconduct.
“I am satisfied that the dismissal of Mr Ranawakage was harsh and unjust. I am therefore satisfied that Mr Ranawakage was unfairly dismissed,” she said.
MSS was ordered to pay five weeks’ pay in compensation to Mr Ranawakage, plus superannuation less taxation in lieu of reinstatement.
