Sleeping on the Job
In some instances, sleeping at work is an encouraged practice. In Japan, for example, sleeping on the job (or ‘inemuri’, meaning ‘present while sleeping’) indicates a total dedication to work. In Australia, some night shift workers, especially doctors and police officers, routinely have ‘power naps’ to reduce the potential for fatigue-induced errors. However, there have been several recent cases where workers have been dismissed from their positions on the basis of serious misconduct simply because they were found sleeping at work. This article looks at the legal ramifications of sleeping on the job in Australia.
Napping at work
Most Australian workers go to work after less than the recommended amount of sleep. Lack of sleep decreases the quality of a person’s decision-making and reflexes, and over the long term, increases the likelihood of developing conditions such as heart disease and depression. A sleep-deprived workforce also significantly impacts workplace productivity, as tired workers are less efficient, work fewer hours and take more sick days.
Even well-rested employees can feel the effects of the mid-afternoon slump, where their energy levels drop in the hours between 1 pm and 3 pm. This phenomenon has led to some experts advocating for the normalisation of a ‘sleep period’ in the workplace. Most notably, some tech companies, such as Google and Facebook, have dedicated nap rooms and sleep pods to allow their employees to rest comfortably at work. Research has shown that even short naps – between 10 and 20 minutes – enhance the physical and mental performance of workers.
It could be argued that allowing workers to nap during the workday is consistent with an employer’s duty to promote workforce health and safety and prevent dangerous levels of worker fatigue. Encouraging workers to rest when they need to is a way to mitigate this WHS risk.
Sleeping at work as grounds for dismissal
The Fair Work Commission recently handed down several different decisions on the topic of sleeping on the job. In Gergely Laszlo Szentpeteri v Serco Australia Pty Ltd [2024], an immigration detention security officer was dismissed for serious misconduct after he was found asleep on shift. After four years with Serco Australia, the worker was terminated after CCTV footage revealed that he put on sunglasses, sat on a sofa in a common room shared with detainees, and remained unmoving for a period of 24 minutes. The worker eventually admitted to falling asleep but maintained that it was not intentional, deliberate or willful. Rather, he submitted that he was overtired because he had a second security job, an overemployment that he had not disclosed to his employer. He further claimed that psychosocial injuries caused during his employment, including PTSD, contributed to his fatigue.
The employer argued that sleeping on the job was serious misconduct as the worker failed to adhere to safe work practices and take reasonable care of his and others’ health and safety. Falling asleep prevented the employee from keeping watch over a vulnerable detainee, and meant he was unaware of two other detainees who had entered the common room and were less than a metre away from him.
The FWC concluded that the worker had acted intentionally in choosing a comfortable chair that did not allow him to observe the detainee and tried to hide his conduct by putting on sunglasses. In its judgment, the FWC emphasised the egregious nature of the employee’s conduct, given that he was responsible at the time for a vulnerable detainee in a high-risk environment. He had also breached his employer’s fatigue management policies and compromised workplace health and safety. The FWC concluded that the dismissal was not harsh, unjust or unreasonable, as the worker’s actions were inconsistent with his employment duties.
In Darren Gardner v Piacentini & Son Pty Ltd [2024], a mine worker was accused of sleeping on the job on multiple occasions. On the first occasion, after failing to receive a response from the employee via radio, a supervisor drove alongside the worker’s vehicle to see him fully reclined in the driver’s seat. The worker claimed that he was simply resting his eyes while completing a pit report. The following day, the supervisor found the worker sleeping in the meal area during a shift. The worker claimed that he was taking a 15-minute break after completing a pump recovery.
During the subsequent internal investigation, the worker repeatedly requested access to the dash cam footage from the first incident, believing that this would support his version of events. The company’s delay in meeting this request meant that there was no way to retrieve this record. Ultimately, the investigation found that the worker was in breach of the company’s health, safety and environmental policies, and the employee code of conduct. In his dismissal letter, the company alleged that the two incidents of sleeping on the job amounted to serious misconduct.
At the unfair dismissal hearing, the Commission found serious flaws in the employer’s workplace investigation. Not only was the worker not informed of the allegations for over a month, and not given the opportunity to fully respond to the allegations, but other delays, including the failure to secure the dash cam footage, affected the fairness of the investigation. There were concerns over the impartiality of the process, as some key witnesses were not interviewed, and others were interviewed by an individual who was themselves a witness. The FWC accepted the worker’s version of events relating to the first incident. The Commission did agree that Mr Gardiner fell asleep in the break room, but found this incident alone did not amount to a valid reason for dismissal. Instead, the employer should have responded to the worker’s misconduct with a warning. The FWC ruled that his termination was harsh and unjust.
Lessons from recent cases
It is clear from this case law that the employee’s work is a critical factor in the question of whether sleeping on the job is serious misconduct. For instance, napping on the job is a very serious matter for an employee who must be alert for potential danger. In contrast, an office worker is unlikely to cause risk by having a short nap while at the office.
Also relevant are the circumstances surrounding the incident and any blame that rests on the employee. When a worker is willfully sleeping on the job, perhaps because they are overemployed, this can rise to the level of misconduct requiring disciplinary action. However, even in such cases, the employer must provide the employee with opportunities to address concerns and not summarily dismiss the employee without procedural fairness. The other relevant factor in play is whether the incident is an isolated instance or a regular occurrence. The Commission has been clear that except in cases of egregious conduct, most employee misconduct should be dealt with first with a warning, with termination reserved for serious transgressions and repeated instances of non-compliance.
When the actions of an employee, including sleeping on the job, create a serious health and safety risk (or pose some other discernible risk to the business), this may be grounds for dismissal. Contact Go To Court Lawyers if you need advice about serious misconduct and grounds for termination. Call 1300 636 846 for any legal advice.