A security company acted reasonably in sacking a guard who was found asleep after missing five phone calls from its control centre, the Workplace Relations Commission has ruled.
Jaroslaw Lukasiewicz complained under the Unfair Dismissals Act against his employer, K-tech Security Unlimited Company, also alleging breaches of the Organisation of Working Time Act.
The company said Mr Lukasiewicz was posted to a housing estate in Co Offaly where he was “responsible for several million euros in client assets”.
On 10th December, 2019, the company submitted, its control room was trying to contact the complainant, but his phone rang out five times.
A manager who went to the site to check on him found Mr Lukasiewicz “asleep on duty, absent from his post, out of uniform and not wearing his PSA ID badge”, the WRC was told.
“The trust of clients is essential to both brand and business. There can, in my view, be no greater breach of trust than a guard sleeping on duty while responsible for the security of a site,” the company’s representative said.
The manager sent Mr Lukasiewicz home and an investigation meeting followed the next day, the company said, submitting minutes in which the complainant admitted he was asleep and away from his post.
The company’s position was that these were “serious breaches of discipline”, and matters progressed to a disciplinary hearing on 16th December.
“Given the serious nature of the breaches the respondent could have no trust that the complainant would not repeat the behaviour the next time he was rostered for lone night working,” the company’s representative argued.
Mr Lukasiewicz was dismissed and the dismissal was upheld on appeal to an independent expert.
“If there had been an incident, such as a fire or a break-in, it could have been disastrous for all concerned,” the company’s representative argued. “If the client had arrived and found the security guard asleep, the relationship between the company and the client would have been destroyed,” he said.
Accepted
Mr Lukasiewicz, who was represented by EM O’Hanrahan Solicitors, accepted he had fallen asleep at work but disputed that it was gross misconduct.
His former employer had failed to take into account his working hours, which he said extended to 12 hours, his lawyers argued.
Because his hours varied, the WRC was told, they “had an impact on his sleep rhythm and left him exhausted and jet-lagged”.
K-tech Security had “created the working conditions which caused the ‘jet-lag’ but has accepted no responsibility for this”, his solicitors said.
The complainant’s position was that it was “unfair and unreasonable” to punish him for “involuntary conduct” arising from an alleged breach of his statutory rights.
His solicitors argued that he did not receive a 15-minute break within the first four and a half hours of starting work or a 30-minute break within six hour and that he worked seven days or more in a row on a number of occasions.
“Falling asleep at work in these specific circumstances was involuntary and was inevitable due to the working system set up and created by the employer. It was not misconduct and was certainly not gross misconduct to fall asleep at work in these circumstances. The employee was given no credit for taking responsibility and making full admissions,” they argued.
Adjudicating officer Pat Brady found there had been no convincing argument made about defects in the disciplinary procedure and that the decision to terminate Mr Lukasiewicz was fair.
“The alleged long and varied shifts were not unusual for the industry, and there was no perceptible relationship between variation in shifts and the incident giving rise to the termination,” he wrote, adding that the complainant had never objected to his shift pattern or asked for it to be altered.
Appropriate
He wrote that with the “commercial implications” for K-tech Security of a guard being asleep on duty it was “easy to see” how the firm might see dismissal as an appropriate sanction.
Mr Brady also found the company was entitled to benefit from the security sector derogations from the Organisation of Working Time Act and was in compliance with the Act under that basis.
He noted that he had seen evidence that Mr Lukasiewicz “had taken and signed for all breaks to which he was entitled” and dismissed the working time complaints.
