He wore sunglasses to cover his eyes from the CCTV, says employer
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a detention service officer who was dismissed from his employment due to serious misconduct. The worker, who was employed by a detention facility operator, filed an application for unfair dismissal remedy, seeking reinstatement and backpay.
In this case, the worker acknowledged that an incident had occurred on 23 November 2023, where he was seemingly sleeping while sitting on a sofa during his shift. However, he disagreed with his employer's characterisation of his actions as “serious misconduct and negligence.”
The worker argued that his behaviour was strongly related to his post-traumatic stress disorder (PTSD) and that the dismissal was harsh given his medical condition.
The worker believed that the employer should have considered his psychological injury, which he claimed occurred as a direct result of being assaulted on multiple occasions during the course of his duties, before deciding to terminate his employment.
Background and context
The worker started his employment with the employer on 1 March 2019 as a detention service officer and was dismissed on 13 December 2023. The reason given by the employer for terminating the worker's employment was serious misconduct.
The employer alleged that on 23 November 2023, the worker was asleep on duty, inattentive to his duties, and failed to maintain a constant line of sight of a vulnerable detainee he was responsible for monitoring.
The employer also claimed that the worker intentionally wore sunglasses to prevent the CCTV from capturing his eyes being closed and that he failed to notice or react to two detainees who entered the common room during the incident.
The worker filed his application for unfair dismissal remedy on 7 January 2024, which was five days late. The employer raised a jurisdictional objection to the worker's application on the basis that it was filed out of time. However, the FWC dismissed the jurisdictional objection and allowed the worker to proceed with his application.
Worker's arguments
The worker argued that while he acknowledged the incident on 23 November 2023, where he was seemingly sleeping while sitting on a sofa on duty, he disagreed with the employer's characterisation of his actions as serious misconduct and negligence.
The worker submitted that the incident was due to his medical conditions, including PTSD and permanent impairment, and that he had fallen asleep without even realising it at the time.
The worker argued that the dismissal was harsh given his medical condition, emphasising that this was the first time he had fallen asleep during work after sustaining his injury. He believed that his psychological injury made it harder for him to identify when he became unfit for work.
The worker submitted that the employer should have considered these factors and his four years of service, and instead presented him with a final warning and the opportunity to seek further medical treatment and potentially workers' compensation.
In support of his argument, the worker provided a medical report from his doctor, dated 26 March 2024, which stated:
"On 23 November 2023. [The worker] fell asleep at work. There is a high possibility that this behaviour is strongly related to his PTSD. [The worker] has not listened to my recommendation to cease work and his reason given was due to his financial hardship."
‘Sleeping on duty’ as serious misconduct
The employer submitted that the worker's dismissal was not harsh, arguing that the worker had engaged in misconduct that precluded him from performing all aspects of his role, with the potential to impact employees' and detainees' welfare.
The employer maintained that there was a valid reason for dismissal in the circumstances arising from the 23 November 2023 incident.
The management also argued that the worker was provided with a high level of procedural fairness before the dismissal, stating that he was given an adequate opportunity to respond to allegations of misconduct and the possibility of termination of his employment.
The employer cited the provision of a suspension letter, notification of a formal disciplinary meeting, and the opportunity to attend it, as well as the written submission the worker provided instead of attending the disciplinary meeting.
FWC's findings and decision
In its decision, the FWC said:
"Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the [worker] was not harsh, unjust or unreasonable. I am satisfied that the [worker] fell asleep on the job, when charged with the protection of a vulnerable detainee in a high-risk setting.”
“The [worker] breached the [employer’s] fatigue management policies and acted with intent when he went to sleep and took action to conceal his conduct by putting on sunglasses indoors,” the FWC said.
“The [worker] put his own safety at risk, as much as he put at risk the vulnerable detainee he was charged with taking care of. This created an untenable situation that was inconsistent with the continuation of the [worker’s] employment as a detention services officer,” it added.
The FWC's decision highlights the key factors that led to the dismissal of the worker's unfair dismissal application. The FWC found that the worker's actions, including falling asleep on the job, breaching fatigue management policies, and attempting to conceal his conduct, created an untenable situation that was inconsistent with his continued employment as a detention services officer.
The FWC also emphasised the high-risk nature of the worker's role and the potential harm to both the worker and the vulnerable detainee under his care.
“Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the [worker] was unfairly dismissed within the meaning of section 385 of the FW Act. The [worker’s] application is therefore dismissed," the FWC said.
While the worker's medical condition and length of service were considered, the seriousness of his misconduct and its potential consequences were ultimately deemed to outweigh these factors.
