An unstructured break roster and lack of clarity around taking breaks have seen an employer lose an unfair dismissal case against an employee who went 'off-post' for longer than allowed.

The employee worked as a detention services officer in New South Wales for six years and was on secondment to Christmas Island when she was dismissed for leaving her post for an extended break in a medical treatment room on two occasions. Her employer dismissed her because her actions meant that she had failed in her duty of care to detainees.

On a third occasion, CCTV showed the employee entering the same medical treatment room and arranging furniture in a way that suggested she was creating a place to sit or lie down out of view of the CCTV camera. This incident was investigated but was not cited as a reason for dismissal because her misconduct related to the length of her unauthorised absences rather than the details of where she was or what she was doing.

The Commission heard that at the time of the incidents the employee was near the end of a 12-hour shift and had not taken a proper break before this point. The employee admitted that she had taken longer than allowed and stated that she was "taking a break while things were quiet ... and simply lost track of the time."

The enterprise agreement which covered the employee specified the amount of time allowed for breaks and made provisions for the duty manager to specify the times these breaks should be taken according to operational requirements. However, there was no roster for breaks at the workplace and it was common for employees to take breaks whenever they could, and were often too busy to take a break at all. This fact was not disputed by the employer and there was no evidence to suggest that the employer objected to employees choosing their own break times during their shifts.

In his ruling Senior Deputy President Hamberger stated that "Under those circumstances, I think [the employee's] actions do not constitute a valid reason for dismissal."

The employer was ordered to pay the employee the equivalent of three months' wages.

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