Should a security officer stay awake on night shift duty?

Well, the employer and the client thought he should but…

One Minute Summary

A security officer is found asleep on night shift with his car door open and sports streaming on his mobile phone.
He states he was only sleeping during his break. The employer cannot disprove this.
His contract and the instruction manual state sleeping on the job is misconduct and could result in termination of employment. After an investigation he is terminated.
The Commission finds there is a valid reason for the termination based on the employment contract and instruction manual.
However, it finds the termination was unjust due to extenuating circumstances including that the conduct was not deliberate, his favourable employment record and that the conduct was unlikely to reoccur.

Mr Ranawakage was employed by MSS Security as a Security Surveillance Officer in October 2024 and terminated in October 2025 for falling asleep on the job. While working for MSS he was stationed with their Sydney Trains client as were about 250 other MSS officers. He usually worked Thursday to Sunday 7pm to 5am.

The MSS role with Sydney trains was to detect and prevent trespassing and associated criminal damage. This involved SSO’s as well as covert camera surveillance. The duties were performed through foot patrols and camera monitoring which can be performed from handheld devices in patrol vehicles. For safety and support purposes employees worked in pairs.

On October 9, 2025, Mr Ranawakage came to the belief that his partner Mr Hellwig’s children had chicken pox and asked to use his own car to travel to the site at Waverton station to isolate himself from Mr Wellwig. (Mr Wellwig states neither he or his children had chickenpox).

During the shift Mr Wellwig gave evidence that he had intervened in youth anti-social behaviour and had called for police assistance. He stated Mr Ranawakage remained in his vehicle and provided no support.

Mr Wellwig found Mr Ranawakage asleep in his car with the driver’s door open. He called his supervisor who came to the location and confirmed Mr Ranawakage asleep. He also observed Mr Ranawakage had his mobile phone out which was streaming a sports match and that there was an open packet of sandwiches next to him. Mr Ranawakage was sent home.

Following an investigation Mr Ranawakage was terminated on 22 October 2025 for sleeping while on duty thereby placing his own and other’s safety at risk.

Mr Ranawakage’s contract of employment with MSS stated that Mr Ranawakage’s employment could be terminated summarily, ‘in cases of serious and/or wilful misconduct, including, but not limited to… falling asleep at work.’

The MSS Security – Employee Standing Instructions stated:

‘Protection and prevention are an employee’s prime responsibilities and they must always be alert. Sleeping on duty disables your ability to perform your role effectively and may place your own or others’ health, safety, or welfare in jeopardy. Sleeping on duty is considered to be serious misconduct and one of the most serious offences an employee can commit, which may result in their employment being terminated immediately.’

‘An on-duty employee who feels unwell or fatigued and believes they are at risk of falling asleep must immediately notify their supervisor or the MSS Security Operations Centre.’

In examining the case Deputy President Wright firstly asked whether the question of whether there was a valid reason for the dismissal.

In response to the youth incident mentioned above Mr Ranawakage gave evidence stating that he had seen the youth, but he had not witnessed them doing nothing illegal. He did not deny falling asleep but stated it was only during his meal break. Meal breaks were not set but taken at a convenient time – usually in consultation with the partner SSO.

During the proceedings MSS could not clearly establish the duration Mr Ranawakage had been asleep. The decision showed this was an important factor – was he only asleep during his break (as he claimed) or for an extended duration therefore while on duty. Evidence also showed that Mr Ranawakage had not recorded his break commencement time in the log and had not informed his partner he was taking a break. Regardless of this it could not be proven that the duration of the sleep exceeded the break time.

Despite this the Deputy President stated there was a valid reason for the dismissal related to his conduct:

‘Having regard to the requirements of Mr Ranawakage’s role and the prohibition on sleeping at work in both his contract of employment and the Employee Standing Instructions, I find that MSS’ decision to dismiss Mr Ranawakage for sleeping at work is sound, defensible and well founded. As such there was a valid reason for the dismissal related to Mr Ranawakage’s conduct.’

However, Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. The decision then discusses a number of other factors to take into account and whether they weigh in favour of the termination being unfair or not.

During the hearing MSS confirmed that prior to this incident there had been no concerns about Mr Ranawakage’s performance. However, Mr Ranawakage was in a safety critical role where constant vigilance was an inherent requirement of the role. MSS asserted his behaviour indicated a “serious failure to perform duties while on shift.”

In response the decision states:

“I have also found that Mr Ranawakage was having a crib break at the time he fell asleep and that he was not prohibited from watching sport on his phone while taking a crib break. These findings lead me to conclude that Mr Ranawakage’s actions in falling asleep were unintentional.” and “…it is reasonable for me to infer that there is a risk of SSOs involuntarily falling asleep as the shift lengths are long and involve sitting in cars for long periods when the SSO would ordinarily be sleeping if they were not at work”.

In respect to the impact of the dismissal on Mr Ranawakage the decision states:

“Mr Ranawakage was unemployed for six months following the dismissal. The financial hardship caused to Mr Ranawakage by the dismissal is a matter which weighs in favour of a finding that the dismissal was unfair.”

In conclusion the Deputy President determined that despite finding there was a valid reason for the dismissal:

“I believe that termination was not proportionate to the seriousness of the misconduct given my findings that Mr Ranawakage’s conduct was not deliberate, that the circumstances were unique and that MSS did not take into account Mr Ranawakage’s favourable employment record and that the conduct was a ‘one-off’ occurrence which was unlikely to recur. Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Mr Ranawakage was harsh and unjust.”

Given Mr Ranawakage had not sought reinstatement, and MSS had made it clear that reinstatement was not an acceptable option the DP decided a compensation payment was appropriate.

In assessing a compensation payment the Commission is required to make an assessment as to whether Mr Ranawakage contributed to MSS’s decision to terminate. Given the earlier finding, of there being a valid reason for the termination, the DP decided to reduce the compensation by one week.

In determining the compensation payable the DP took into account that Mr Ranawakage had commenced his own business six weeks after the dismissal. In a surprising twist he was only awarded 5 weeks wages – after the one week’s deduction.

Commentary

I usually try and limit the number of quotes from decisions – often to minimise the legalese for readers. However, in this decision the quotes perfectly convey the meaning and intent.

This decision surprised me. Security work is usually only required in a less than desirable, potentially unsafe, location or where there is a risk to property. Given how clear it was made, through the employment contract and the Employee Standing Instructions, that staying awake is vital, this in my view should have been the overriding factor.

However, as we have learned from this and other decisions, even where there is a valid reason for termination, the other factors can override such a decision making it unjust.

MSS was stuck between a rock and a hard place. A client who pays for overnight security to patrol their property will often find it hard to accept anything less than a termination in such circumstances. During the case MSS produced evidence that just prior to (but unrelated to) the termination of Mr Ranawakage, they had received a complaint from Sydney Trains management relating to SSOs sleeping on the job. Such matters tend to flow into the next contract negotiations or could potentially trigger the ending of the current contract. Perhaps the DP also understood this in awarding only 5 weeks payment against MSS?

What this decision shows employers is the need to look beyond the immediate valid reason and examine the other factors such as age, length of service, prior conduct issues of lack of then, the personal circumstances of the employee. Unfortunately, these external extenuating circumstances can be quite broad and vary from employee to employee.

An important point to note in this case is the discussion on proving Mr Ranawakage was asleep longer than his meal break. MSS could not produce evidence to counter Mr Ranawakage assertion that he was only sleeping during his break. With hindsight maybe they should have monitored him for longer before waking him and sending him home.

Employers seeking assistance in determining whether conduct amounts to a valid reason and to evaluate the potentially extenuating circumstances should contact Michael for assistance.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au