Security Guard Accused of Taking 4 Hour Break Loses Unfair Dismissal Claim
A security guard employed by MSS Security has lost his unfair dismissal claim in the Fair Work Commission (FWC) following his sacking over claims he took excessive breaks and failed to perform patrols as required.
Background
The applicant in the matter, Mr Do, was employed to work at a Victorian Department of Health and Human Services site known as Debney Park. MSS had concerns about the conduct of guards at the site and sent in a Site Supervisor from another site to observe what was happening. He reported back to his superiors his observations after working at Debney Park on 11 January 2019. He claimed guards spent most of their time sitting outside the control room or asleep in their cars. He claimed one guard was asleep in the control room, snoring. For every 20-minute patrol, the informer alleged guards were taking 80 to 90-minute breaks. In the course of the shift, he said he barely worked for two hours ‘max’.
In the fall out from the intelligence gathering exercise, several guards lost their jobs, including Mr Do.
The allegations put to Mr Do by MSS were:
- That he failed to ensure shift staff were following instructions and duty orders
- That he failed to ensure patrols were completed correctly
- That he failed to ensure that his shift break times were adhered to. MSS indicated to him that it had a record of him taking breaks in excess of 4 hours during a single shift
- That he failed to conduct the services in accordance with the client’s instructions
- That he was sleeping in his vehicle during the course of his shift
After a ‘show cause’ process, during which Mr Do was represented by his Union, the employer decided the allegations had been substantiated, apart from the allegation about Mr Do sleeping in the car, and advised Mr Do that his employment was terminated, effective immediately, on 14 February 2019.
What the FWC found
Mr Do denied the allegations relied on by MSS to dismiss him. He blamed the Supervisor, claiming the Supervisor was responsible for what occurred at the site and that he was acting in accordance with the Supervisor’s directions at all times. Commissioner Gregory of the FWC found that, while there was more that MSS could have done to endeavour to substantiate the allegations made about Mr Do, the evidence of the witnesses called for MSS should be preferred such that the FWC was satisfied that Mr Do’s conduct at the site constituted serious misconduct. The Commissioner gave MSS a serve by questioning how the practices at the site were allowed to continue for as long as they did. The Commissioner said that MSS can take no credit for allowing the situation to exist for as long as it did given the site is a potentially dangerous work site and the actions of the guards had the potential to risk the safety of employees as well as the residents at the site.
Commissioner Gregory determined that Mr Do’s dismissal was not harsh, unjust or unreasonable.