Failing to act promptly when an employee was caught sleeping on the job has brought an employer’s decision to dismiss a security guard undone in the Fair Work Commission (FWC). Adopting the long-held approach that failure to act promptly amounted to acceptance, the FWC ordered reinstatement with partial restoration of lost wages.
The security guard had fallen asleep on his night shift. He was the only guard in attendance from his employer’s firm and a person employed by security firm’s client had to wake the guard up, so this caused the firm some embarrassment.
Crucially though, the client did not inform the employer of the incident until nearly four weeks had elapsed. In that time, the guard continued to provide security services to the same client.
Then the employer did not act immediately it was known that the incident had occurred. Instead it took more than a week to confront the guard and even then, the procedure adopted was less than ideal. In evidence, it became obvious the employer had made the decision to summarily dismiss the employee before conducting any inquiry or hearing the employee’s side of the story.
The FWC decided even though falling asleep on the job was considered a serious and sackable offence for the security guard, the actions of both the client and the employer were inconsistent with that view. If, FWC reasoned, sleeping on the job was so serious, why didn’t the company act as soon as the client advised of the incident?
There is a long history of commission decisions which essentially rebuke employers for delay in these matters. The logic is hard to quarrel with. If the action is so bad as to warrant instant dismissal, then surely that’s what it should be; instant, not several weeks later while the employee continues their normal duties.
The lesson is clear. Employers must act fairly but without delay or face the consequences of an embarrassing order to reinstate an employee, even where the behaviour has warranted the sack. They should also insist, where relevant, that clients report short-comings of their employees.
FWC ordered a 75% reduction in lost earnings to account for the misconduct of the employee but this was cold comfort for the employer given its policy has been undermined and its processes found badly lacking.