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Worker not paid to sleep on the job

The Dominion Post - Saturday 30 April 2011


After a long solitary shift, the temptation to nod off can be great. The Employment Relations Authority recently found that an employer had a “reasonable belief” that an employee had been sleeping on the job and was justified in dismissing him.

Mr Dee had been employed by Air New Zealand as a Boiler Operator since 2004. Early one morning, while Mr Dee was on nightshift, Mr Dee’s supervisor Mr Cassidy, paid Mr Dee a visit and alleged that he found Mr Dee asleep on the floor.

Mr Dee was suspended later that day and a disciplinary process was carried out by Mr Dee’s Manager, Mr Chivers. Mr Dee faced three allegations, sleeping on duty and leaving the boiler he supervised unattended on two occasions. Mr Chivers’ investigation determined that Mr Dee was guilty of serious misconduct.

The Authority firstly considered whether Mr Dee’s suspension was lawful. The Authority said Air New Zealand did not follow its own disciplinary procedures and guidelines, which set out a policy for suspending employees. Mr Dee had no opportunity to be heard on the possible suspension, nor did he have any opportunity to take advice from his Union during the suspension process. Despite all of this, the Authority said Air New Zealand’s unjustified action did not cause Mr Dee any disadvantage because he remained on pay throughout the 10 week suspension.

The Authority secondly considered whether the decision to dismiss Mr Dee was justified. The Authority said that sleeping on the job in a safety sensitive environment, such as sole charge of an attended boiler, is behaviour capable of amounting to serious misconduct.

Mr Dee contended that Air New Zealand could not “prove” that he was sleeping and thus its finding of serious misconduct was misconceived. Air New Zealand argued that a “reasonable belief” was sufficient.

Mr Dee was found by his supervisor Mr Cassidy on the floor of the boiler room control office shortly after 1.30am. Mr Cassidy conceded that he could not see whether Mr Dee’s eyes were shut because the lights were off in the boiler room when Mr Cassidy found Mr Dee.

Mr Dee's explanation was that he turned the lights off because he was watching a television replay of a Warriors game, which was permitted, and it was easier to see the screen with the lights off. However, by the time Mr Cassidy found Mr Dee, the Warriors game had been over for some 20 minutes. In addition to being found on the floor with the lights off, Mr Dee was found with his boots off and with a pillow.

Mr Cassidy said that upon walking into the boiler room he could not see Mr Dee anywhere in the room which was quite dim. But all of the sudden there was a movement from the floor and Mr Dee sprang up from underneath the bench saying something like “shit shit” and then quickly sat on the chair near the computer screen, putting what looked like a pillow behind him.

At the time Mr Cassidy asked Mr Dee what he was doing, but Mr Dee gave no explanation. When Mr Dee was suspended he again made no attempt to explain the situation. Mr Cassidy remembers Mr Dee saying: “If I promise not to do it again would that be okay?” The Authority said that such a comment “can only be seen as redolent of guilt and the employer took it as such.”

It was not until a second meeting between the parties, nine days after the incident, that Mr Dee first offered his explanation that he was doing back exercises on the floor. Mr Dee said he was prescribed back exercises by his physiotherapist for a persistent lower back problem. However, the Authority was critical of the evidence and said that it did not prove that Mr Dee was doing back exercises when he was found by Mr Cassidy.

Mr Cassidy said that he knew Mr Dee had a back problem but had no idea that Mr Dee had to do exercises for it and certainly had never seen Mr Dee exercising at work. The Authority said that if Mr Dee was required to do exercises during the working day and was determined to do so, he would have made a point of telling his supervisor and/or other work mates of that obligation, but he clearly did not. No one gave any evidence of having seen Mr Dee exercising in the work place.

Mr Dee argued that he had no proper opportunity to comment on his penalty once a finding of serious misconduct was communicated. However, the Authority was not persuaded that even if the Union had this opportunity, it would have changed the outcome. The Authority said that it was inevitable that dismissal would be the result of a finding of serious misconduct in the circumstances Air New Zealand had determined.

The Authority said that it was satisfied that a fair and reasonable employer can conclude that serious misconduct has occurred in a particular factual situation, even where the specific allegation made against the employee cannot, of itself, be proved.

It was found that Air New Zealand’s decision to find serious misconduct and dismiss Mr Dee was the decision that a fair and reasonable employer would have made in all the circumstances.

Sleepy workers, leave your pillow at home, keep your shoes on, and do the work you are paid to do.

Your employer doesn’t have to hear you snore – a reasonable belief that you are sleeping is sufficient to fire you.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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