Employer told to reinstate worker caught sleeping on the job

A recent case dealt with an employee who argued that he was unfairly dismissed from his job because of allegedly sleeping on his duty. The employee claimed he was suffering from a medical condition, but the employer proceeded with the dismissal.

Despite accounts of catching the employee in the act, the decision still favoured the worker due to procedural issues in the dismissal process itself. What could the employer have done better to defend its decision?

Background of the case

According to the Victorian Chamber of Commerce and Industry, the employee was a prison guard in correctional services and was known as “a diligent worker with a promising career standing” over his five years of employment. 

“He was awarded several promotions and completed various training courses and assessments, aspiring to become a correctional supervisor,” the Victorian Chamber said. 

However, in 2018 and 2019, the employer subjected the worker to disciplinary action after the latter slept on his duty on three separate occasions.

Thus, the employee sought immediate medical advice, and the physician diagnosed him with a form of sleep apnea. It further said that following his diagnosis, the prison guard took the necessary steps to manage his condition so that it would not affect his work. 

Despite the employee’s action to mitigate his condition, the Victorian Chamber reported that the employer still dismissed the worker in August 2021, approximately more than 18 months after the most recent incident of the worker falling asleep at work.

Industrial Commission’s decision

According to the Victorian Chamber, the Industrial Commission favoured the worker and said the employee was unfairly dismissed.               

“Industrial Commissioner McLennan was not satisfied the dismissal process adopted by the employer was fair and ordered the employee to be reinstated, finding numerous procedural errors had occurred,” the Victorian Chamber said. 

“It failed to take account of key evidence, failed to share evidence with the employee and failed to have regard for the information provided by the employee,” it added. 

Moreover, the Victorian Chamber said that the Commissioner noted the “overwhelming” medical evidence, which confirmed that the worker could still perform his job duties and that he effectively did his work leading up to his suspension. 

The business network said that the Commission also found that the medical evidence was enough to confirm that it was plausible for the worker to be “unaware” that he had a “microsleep.” Thus, the employee was ruled to be unfairly dismissed. 

Takeaways for HR leaders

• Properly investigate cases of alleged misconduct of employees to mitigate the risk of unfair dismissal
• When conducting an investigation, follow the standard procedure and seek expert advice if necessary
• Ensure that the disciplinary outcome of an employee is appropriate to the gravity of the incident 
• Conduct periodic wellness assessments and encourage employees to undergo physical examinations to track their overall health