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Sleep tight, don't let the law bite

27 April 2016

Readers may have read about Federal Express and its sleepy loader.

This month reports emerged that a member of their ground crew was loading a flight at Memphis International airport in the United States. Incredibly, he fell asleep while loading cargo and ended up being carried almost 1200 km to Texas.

When he woke up he knocked on the closed cockpit door.

Knowing that he was a Fed Ex employee, the pilots told him to get into the jump seat and buckle up as they were about to land anyway. Although met by airport police it was decided there was no criminal intent and he was released.

No doubt a stern talk with his employer also followed.

Turning closer to home, New Zealand employers have similarly had to deal with sleepy employees. The Employment Relations Authority has just released its decision on Moreana Taylor who fell asleep on her job.

Taylor worked at the Devon Hotel in New Plymouth for eight years. She was employed as a room attendant/night porter.

At 3.44am she claimed that she had a sore back and sat down to rest. She also speculated that she may have collapsed or fainted. Unfortunately she did not wake until 5.34 am the entire incident was caught on camera.

A formal disciplinary meeting was held and Taylor was dismissed. Taylor raised a personal grievance for the dismissal and this was heard by the Authority.

In terms of her obligations as night porter, Devon Hotel claimed that this was a serious concern as it impacted on security and safety for the hotel and its guests.

That would probably have been a sufficient reason to dismiss her with justification. However the hotel made mistakes in its investigation and because of that the dismissal was held to be unjustified.

One important finding the Authority made was that Devon Hotel did not sufficiently explore Taylor's claims that she had a sore back and that she may have collapsed or fainted. They held that a fair and reasonable employer could be expected to have requested that Taylor obtain medical evidence and considered that evidence before making a decision to dismiss.

In any event, modest awards were made because of the significant contribution Taylor made to the situation she found herself in.

But while the courts have been asked to declare that employers are justified in dismissing employees who fall asleep, some employees have asked that sleeping be considered work… and succeeded!

Readers may remember the case of Phillip Dickson who worked in an IHC home.

Four or five residents with disabilities lived in the community home and with some assistance they could undertake normal day-to-day activities. Assistance was also required to a lesser extent at night.

Dixon had certain tasks to do at the home like ensuring the property was secure and performing sign off fire checks but otherwise could sleep on a bed provided or do as he wished unless he was disturbed for any reason.

The sleepover ran from 10pm to 6am. He was compensated with a shift allowance of $34 a night. By comparison, for his day work he was paid around $18 an hour.

The Courts found he still had significant limitations on his freedom during the sleepover, certainly more than if he lived in his own home, and for this reason he was considered to be working. On this basis the Court held that he was to be paid at least the minimum wage for the entire sleep over period, including when he was sleeping.

The decision had a significant impact on places such as IHC homes in terms of wage costs and also for workers in terms of their wages.

So if you're of a sleepy disposition the adage must be to pick the right employer. Some must pay you to sleep and others will dismiss you if you sleep.

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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