As winter creeps in, employers are faced with the dilemma of having to discipline employees who were sleeping whilst on duty. Even though there are but a few things as rejuvenating as a “power nap”, most employers would agree that only a few things reek of unprofessionalism as much as an employee who is sleeping on duty. But the question remains, is it possible to dismiss an employee who was caught sleeping on duty.
In terms of the Labour Relations Act, it is inappropriate to dismiss an employee for a first offence unless the misconduct is considered severe and causes the working relationship between the employer and employee to be intolerable. However, for any dismissal to be considered as fair, the employer has to prove both substantive (relating to the employee’s conduct) and procedural fairness (relating to the process followed when disciplining the employee), regardless of the merits of the case.
An employee who sleeps not only place themselves at risk but his/her co-employees as well as the interest of his employer.
For example:
- Employee A is employed as a packer at “ABC Warehouse & Storage Units” and is caught sleeping whilst on duty in the cafeteria;
- Employee B, who is employed as a security guard at “TUV Security Services” and is caught sleeping on duty whilst stationed at cell phone tower;
- Employee C is employed as a control tower operator at “XYZ Fighter Pilot Flying Academy” and is caught sleeping whilst on duty.
Employee A will most likely be sanctioned with a written warning for a first-time offence due to the low–risk area where the employee was caught sleeping. Employee A’s conduct had little effect on the tolerability of the employment relationship between the employer and employee since the employee works as a packer and was caught sleeping in a low-risk area.
Employee B will most likely be sanctioned with a final written warning for a first-time offence due to nature of the employee’s duties. This clearly has a more detrimental effect on the tolerability of the employment relationship between the employer and employee, in comparison to a packer who is caught sleeping on duty. There is a fundamental duty that rests upon a security guard to protect and to stay alert.
Employee C will most likely be sanctioned with a summary dismissal for a first-time offence given the high-risk area the employee is working in. Employee C’s conduct will most likely have fatal consequences on the broader public, co-employees and the business operations of the employer. The nature of the employee’s misconduct would most likely render the employment relationship between the employer and employee intolerable.
Sleeping on duty may either occur unintentionally where an employee drowses or dozes off due to sedative medication or long hours of sitting. However, sleeping on duty may also occur intentionally where an employee went to hide away or re-arranged chairs in order to make a temporary bed.
Employers are always urged to have a policy in place that addresses sleeping on duty and applying progressive discipline as far as possible.
If an employer has a suspicion that an employee is sleeping on duty, the employer should ensure that enough evidence is obtained by doing the following:
- Always ensure that at least one witness is present who can testify at the disciplinary hearing that the employee was caught sleeping whilst on duty;
- To ensure that cameras are installed in the guard room alternatively to video record the employee who is sleeping on duty;
- Detailed notes of how the employee reacted after calling the employee’s name;
- Detailed notes of the surroundings of where the employee was caught sleeping as well as any objects that were used in order for the employee to be more comfortable, e.g. building of temporary beds or sitting in a room with the lights off; and
- The position in which the employee was caught sleeping.
Employers are furthermore advised to ensure that they adhere to statutory requirements of the Basic Conditions of Employment Act by allowing sufficient rest periods or time off in between the start and end of shifts.
SEESA advises that employers contact our offices in order to obtain legal advice from your SEESA legal advisor before instituting any disciplinary actions of this nature.
The Author:
Theo-Neil Williams is a Legal Advisor at SEESA for Labour and BEE since 2018 in our East London office. He obtained his LLB degree from the UFS and is an admitted attorney in the High Court of South Africa. Prior to joining SEESA, he practised as an attorney specialising in Civil Litigation.
Sources:
- Boardman Brothers (Natal) (Pty) Ltd v CWIU [1998] 7 BLLR 655 (A);
- Melapi v Commission for Conciliation Mediation and Arbitration and Others (P 423/12) [2015] ZALCPE 12 (18 February 2015;
- FAWU obo Madisha v Blue Ribbon Bakkery MP15349 CCMA;
- Delporte v Alert Security (1997) JOL 1454 (O);
- Schedule 8 of the Labour Relations Act;
- Basic Conditions of employment Act;