INSIGHT

A cautionary tale – let sleeping employees lie

By Simon Dewberry
Employment & Safety Human rights obligations Risk & Compliance Superannuation Industrials

In brief

A recent Fair Work Commission decision has confirmed that procedural deficiencies will render a dismissal unfair even where the dismissal involves serious misconduct. Senior Associate Laura Miller, Lawyer Sarah Lunny and Vacation Clerk Adaena Sinclair-Blakemore report.

How does it affect you?

  • To ensure that a dismissal is not challenged on procedural grounds, employers should ensure that employees have been given an opportunity to respond to all allegations that are relied upon to justify termination, even those that arise in the course of disciplinary meetings with the employee (such as dishonesty).
  • While it is not necessary for an employer to disclose to an employee the source of a complaint in disciplinary meetings, employers must be careful not to mislead employees about the circumstances in which a complaint arose or the evidence the employer has of the behaviour in question.

Background

Jacqueline Waite, a security guard, was dismissed by Serco for serious misconduct as she had been sleeping during her shift, using an iPad at work, and was dishonest during an investigation into her behaviour.

Ms Waite was photographed by a colleague sleeping while on nightshift at a hospital and using an iPad to watch movies and TV shows. Ms Waite was reported to management and was subsequently asked to attend a 'fact finding' meeting. During that meeting, Serco falsely told Ms Waite that it was a nurse who reported her conduct, not her colleague. Serco did not show Ms Waite the photographs that her colleague had taken. Ms Waite said that she had just dozed off during her shift.

Several weeks later, Ms Waite was required to attend a second meeting where she was shown the photographs and informed of the true source of the complaint for the first time. Ms Waite said that she had not slept for all of her shift and was simply using her iPad to try to complete Serco training.

Serco considered that Ms Waite's lack of remorse, her failure to raise any mitigating factors and the discrepancies between the explanations for her conduct in the first and second meetings meant that dismissal was the appropriate response.

Decision

The Commission decided that Ms Waite's dismissal was unfair, and awarded Ms Waite compensation.

While the Commission acknowledged that sleeping and watching movies and TV shows while on shift were valid reasons for dismissal, it concluded that there was no reasonable basis for Serco's conclusion that Ms Waite was dishonest. This was a significant finding, as Ms Waite's alleged dishonesty was a significant reason for the decision to terminate her employment.

In relation to the process followed by Serco, the Commission criticised Serco for blindsiding Ms Waite by failing to show her the photographs and tell her the true source of the complaint at its first meeting with her. The Commission also emphasised that Ms Waite had not been notified of the allegations of dishonesty against her or given an opportunity to respond to those allegations.

The Commission also noted that Serco had failed to give appropriate consideration to Ms Waite's long and unblemished service and her personal circumstances.