Can a worker be dismissed for sleeping on duty?

Fair Work deals with worker seen asleep in truck at workplace

Can a worker be dismissed for sleeping on duty?

Sleeping on the job is a serious offence in the workplace and, depending on the severity of the incident, can result in disciplinary action.

Under Australian labour laws, it is generally considered grounds for dismissal, and caselaw has reminded employers to investigate the incident thoroughly and document it to provide evidence of the employee’s misconduct.

But what factors must an employer consider before deciding to terminate an employment contract?

Background of the case

In December 2020, the worker was hired as a truck driver and general yard hand at the employer’s workplace. Back in 2021, his performance review was reportedly “unexceptional,” receiving both positive and negative feedback.

Through a letter in April 2022, the worker received notice that he was being dismissed for “unsatisfactory work performance, specifically, due to sleeping on duty.” When he received this, his term of employment was around 16 months.

According to records, the employer’s personnel witnessed the worker asleep in a truck parked in the yard. He was dismissed verbally on the same day or shortly after they saw him sleeping on duty. The termination letter, which confirmed his dismissal, was mailed to him the day after the incident.

In a story reported by HRD, a worker was found to be unfairly dismissed because he was caught sleeping on the job. The employer did not consider that he had a medical condition that caused “microsleep.”

The parties’ arguments

The worker argued that he was not asleep but “simply resting in a truck in the yard due to inclement weather.” He said that he removed his wet shoes, put the heater on, and “sat on the bed” in the truck cabin to shelter from a “torrential downpour” of rain that day.

He said that he “was just about to get out of the truck (as the rain had ‘slowed down’) when the [employer’s personnel] opened the truck door.”

Meanwhile, the employer argued that they had a policy in place when workers had to deal with “inclement weather.” The Fair Work Commission (FWC) agreed with it and said, “The real issue is that the worker had no reason to be resting up or escaping the rain in the truck,” and noted the following:

  • The worker’s conduct (in taking shelter in the truck from rain) is contrary to the employer’s inclement weather procedures.
  • There is always work to do indoors if work in the yard cannot be performed due to bad or unsavoury weather.
  • There is an undercover table and chairs where employees can rest if they are not working in the yard.
  • The worker did not notify his supervisor or any other employee working that day that he was staying in the truck.

In another HRD report, the employee was reinstated despite napping, and watching movies at work.

Was there unfair dismissal?

The FWC weighed the matters and said there was a valid reason to dismiss the worker, however, procedural issues must be considered.

Procedural fairness in employment law refers to an employee’s right to be given a fair and reasonable opportunity to respond to matters or allegations in the workplace. This includes allowing them to defend themselves and raise any other mitigating evidence to defend their case.

In this case, the FWC found that while the worker was “advised of the reason for his dismissal, he was not given an opportunity to respond or raise issues of mitigation before the decision was made to dismiss him.”

He was dismissed verbally even before the termination letter, and he did not have a chance to respond to the allegations.

“The opportunity to defend implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance,” the FWC said.

The worker simply did not have this opportunity, thus, the FWC ultimately decided that he was unfairly dismissed and awarded him compensation.

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