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A security guard accused of defecating on school grounds while on duty has lost his case after the Employment Relations Authority found his dismissal was justified.
Allied Investments Limited, known as Allied Security, fired Thomas Marsters in May 2022 on the grounds of serious misconduct.
The company said he defecated in a basin between two sheds at a primary school while on patrol and repeatedly failed to show up to work without informing anyone of his absence.
But Marsters said the dismissal on those grounds was unjustified and he denied he was responsible for the human faeces that was found.
He argued for lost wages, compensation for humiliation, injury to feelings and loss of dignity of about $12,000.
Human faeces found by deputy principal
The deputy principal of the primary school found human faeces in a basin, which the ERA said looked like a trough, at the base of a 1.8 metre tall fence at the end of two sheds in March 2022.
Motion-sensitive CCTV footage showed only Marsters entering the area in the period between when the faeces was found and the school last checked the sheds prior to the deputy principal's discovery, according to the ERA decision.
But Marsters argued he was only in the area because, according to the finding, he "had a feeling in his bones" that if any place was a target for thieves, it would be the tools and equipment sheds.
He would occasionally check matters that were not necessarily part of his job description and that day it included walking between the two sheds, he said.
However, ERA member Geoff O'Sullivan wrote in the finding that it was clear from the evidence checking the passageway would have "only taken seconds".
Marsters said he did not know why it took him extra time.
When questioned by Allied Security about the faeces, Marsters said he had access to toilets at multiple sites, including the school.
Even though the company had made it clear to him that under no circumstances was he allowed to use the school toilets, Marsters said he would have disobeyed the rule.
He questioned whether the faeces was actually of human origin, whether someone else could have defecated in the area while unseen and whether a neighbour could have thrown it over the fence.
He had "bad knees and it would not be physically possible for him to have defecated in the timeframe", according to the finding.
After investigation, Allied Security rejected Marsters' explanations.
The company said it was unlikely that anyone else could have climbed the 1.8m high fence, defecate in the basin and then climb back.
It also noted that if Marsters needed to check the area, which he was not required to, he could have walked past and flashed his torch, which he had on his phone.
Allied Security decided on the balance of probabilities that Marsters was responsible for the faeces.
He had also not shown up to work on three consecutive days in April or informed anyone of his absence.
Marsters argued he had allergies that made his face swell up and his right eye was like "having it glued closed".
He woke up and could not see anything and could not use his phone, he said.
However, he did not offer any explanation for his absence when he returned to work, only when Allied Security started disciplinary procedures.
The company said both matters amounted to serious misconduct and in May, Allied Security fired Marsters.
Dismissal justified
Allied Security "fully investigated the allegation before dismissing him [Marsters]", O'Sullivan wrote.
He found that Marsters was given a reasonable opportunity to respond to the concerns and the explanations he provided were genuinely considered.
Allied Security was entitled to come to the conclusion they did, O'Sullivan said.
He said while dismissal for Marsters' absences may seem harsh, the company was entitled to find him guilty of serious misconduct warranting dismissal, for defecation.
