Night shift worker receives compensation after being fired for sleeping

An NSW train station security guard was granted compensation by the Fair Work Commission after he was summarily dismissed for sleeping during his night shift.

A covert train station security guard was caught sleeping on the job during a night shift.

Despite his employer, MSS, submitting that this was a breach of the company’s code of conduct, Fair Work Commission deputy president Judith Wright found that the dismissal was valid, but unfair, as the worker was sleeping on his “crib break” and did not intend to sleep on the job.

During a security patrol shift at Waverton station in NSW on 13 October 2025, the worker was found sleeping with a sports game playing on his phone, next to a banana and an open packet of sandwiches, in a 30-second video captured by his colleague.

“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,” MSS’s employee standing instructions said. Nine days later, the worker was summarily dismissed.

Despite sleeping on the job being scrutinised by the company’s policies, Wright determined that this conduct was not deliberate, taking into account the worker’s unblemished employment record.

The applicant worked as a security surveillance officer (SSO) with MSS Security, and his role was to patrol and monitor surveillance at Sydney Trains sites. He was summarily dismissed on 22 October 2025, after he fell asleep on a crib break during a midnight shift on 13 October 2025.

His patrol partner told the commission that at approximately 11pm on 12 October 2025, “a group of youths could be heard yahooing, crashing and banging in and around the Waverton Station concourse … While on the phone to [a colleague], one of the youths approached me in the carpark located beside the train station. He was advised to vacate the area.”

His partner added that approximately 40 minutes later, “the group of youths, all [underaged], 14 to 16 males and females – approximately eight to nine individuals – [remained] in the area. [While] on patrol, the youths were spotted congregating in Carr Street, a few hundred meters away from Waverton Station.”

The partner said that at approximately 1am, an MSS supervisor arrived at the scene and caught the worker asleep in his car. The worker was sent home, and the supervisor remained onsite with his partner.

The deputy president accepted the worker’s claim that he did not intend to sleep on the job.

While his contract of employment provided that his employment may be terminated summarily “in cases of serious and/or wilful misconduct, including, but not limited to … falling asleep at work”, the deputy president said: “These findings lead me to conclude that [the worker’s] actions in falling asleep were unintentional”, taking into account the worker not being subject to any performance or conduct concerns before the incident.

The deputy president added that the worker was not prohibited from watching sport on his phone during a crib break, and weighed the matter in favour of the finding that the dismissal was unfair.

“I believe that termination was not proportionate to the seriousness of the misconduct, given my findings that [the worker’s] conduct was not deliberate, that the circumstances were unique, and that MSS did not take into account [the worker’s] favourable employment record, and that the conduct was a ‘one-off’ occurrence which was unlikely to recur,” the deputy president said.

In her 19 May decision, Wright accepted the worker’s unfair dismissal application and ordered MSS to pay the worker compensation worth five weeks’ pay, plus superannuation less taxation.

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