17 September 2021
Employers are often faced with the dilemma of having to discipline an employee who was sleeping whilst on duty. There aren’t many things as unprofessional as an employee who sleeps on the job, however, are you able to immediately dismiss such an employee?
Sleeping on duty is considered gross misconduct and grounds for disciplinary action, including termination of employment, in some occupations.
Employees may be disciplined for sleeping on duty if:
- They are actually asleep at a time when they should be attending to their duties;
- The employee’s somnambulant state was not caused by something beyond his control;
- The employee was or could reasonably have been expected to be aware at the time that sleeping constituted a disciplinary offence.
Whether the employee was indeed asleep at the time is a question of fact, to be determined from the evidence. The onus rests on the employer to prove that the employee was asleep or, at the very least, was relaxing to the extent that he could not possibly have been concentrating on his duties.
Circumstantial evidence in such cases, such as snoring, the posture of the employee at the time, making of a bed, failure to clock etc. has been accepted to prove that an employee was in fact asleep which resulted in him failing to do his job. These circumstances need to be substantiated with video footage, photographs and/or witness testimonies.
If an employee falls asleep as a result of work-related exhaustion or because they are on sleep-induced medication, they will not generally be guilty of misconduct, unless they could or should have brought their condition to the attention of the employer. However, where exhaustion or a drugged state is self-induced, employees may be disciplined.
In CWIU v Boardman Brothers (Natal) (Pty) Ltd (1995) 16 ILJ 619 (LAC), a divided court held that employees who were working illegal overtime at their request were still found to have been unfairly dismissed even though they were sleeping on duty and were warned not to. The reason the dismissals were found to be unfair was due to the employees falling asleep as a result of work-related exhaustion.
Sleeping on duty will rarely be regarded as an offence justifying a dismissal at first offence, except if the employee is in a position where a momentary lapse in concentration could have serious consequences for the employee or others. E.g. a security guard.
The employer’s disciplinary code is also relevant. Employees need to be aware of the fact that sleeping on duty is an offence and constitutes disciplinary action that can lead to a dismissal if found guilty. If employees are clearly warned that sleeping on duty would result in a dismissal of employment, dismissals are more likely to be upheld.
It is important that employers have an expert guiding hand to assist them when they encounter an employee sleeping on duty. Invictus is able to provide employers with assistance throughout the entire process. Contact Invictus on 0861 737 263 for us to assist you.
