Can you be dismissed for sleeping on the job?

Is sleeping on the job serious misconduct?

The Fair Work Commission recently ruled on two unfair dismissal claims involving serious misconduct for sleeping on the job, delivering varied outcomes. In one of the claims, a detention center security officer who took a nap while wearing sunglasses argued that he fell asleep due to his PTSD.

In the other, a mine worker was accused of snoozing in his truck, which was fitted with a dash cam. When he requested the dash cam footage that would have proved his innocence, the footage had already been wiped. 

Let’s look at the events of the first case of serious misconduct – Gergely Laszlo Szentpeteri v Serco Australia Pty Ltd [2024].

Security guard caught napping fired for serious misconduct 

Gergely Szentpeteri began working for facilities management company Serco Australia as a detention service officer in March 2019. This role saw him perform security work at the Brisbane Immigration Detention Centre. 

The incident that led to Mr Szentpeteri’s dismissal occurred on 23 November 2023. According to his termination letter, Serco stated that between 3:17 p.m. and 3:44 p.m., Mr Szentpeteri was “asleep on duty” while sitting on a sofa in a common room of the detention centre. The company alleged that he had “intentionally wore sunglasses to prevent the CCTV capturing [his] eyes being closed.”

Security officer woke up after tapped on shoulder

Central to Serco’s argument that Mr Szentpeteri’s napping amounted to serious misconduct was that it prevented him from performing his duties. The company said that while sleeping Mr Szentpeteri failed to keep watch of a vulnerable detainee. He also did not notice two detainees who entered the common room, one of whom took items from a table less than a metre from Mr Szentpeteri.

Serco detailed how he did not respond to attempts made by the facility operations manager to gain his attention. The company noted that Mr Szentpeteri only became responsive after the manager tapped him on the shoulder for the second time.

By falling asleep on duty, Serco said that Mr Szentpeteri “failed to maintain safe work practices and take reasonable care of your own and others’ health and safety.” The officer initially denied that he had fallen asleep. However, when presented with CCTV footage, he conceded that the footage “appears to prove that I probably fell asleep sitting on the sofa.”

The footage revealed that the officer had put on sunglasses, reclined on a sofa with his arms across his chest and feet up, and remained motionless for 24 minutes despite people entering and leaving the room.

Mr Szentpeteri was instantly dismissed for serious misconduct on 23 November 2023.

Security officer said PTSD made him fall asleep

In his unfair dismissal application, Mr Szentpeteri did not deny that he had fallen asleep while on duty. However, he maintained that he had not intentionally fallen asleep. He revealed to the Fair Work Commission that he had been working a second job at The Star casino, which he had not told Serco about.

Mr Szentpeteri disputed the characterisation of his actions as serious misconduct. He attributed falling asleep to a psychological injury, specifically PTSD. He claimed that this had come as a direct result of being assaulted on “multiple occasions during the course of my duties” at the detention centre.

Mr Szentpeteri was assessed by a psychologist in March 2024 who noted that there was a “high possibility” that his falling asleep on duty “is strongly related to his PTSD.” Mr Szentpeteri argued that his actions were neither willful nor deliberate. He said that his medical condition should have been considered a mitigating factor in the disciplinary process.

He pointed to his long tenure with Serco and the fact that this was his first incident, arguing that dismissal was an excessively harsh response. He suggested that a warning or an opportunity to seek further medical treatment would have been a more appropriate response.

Fair Work highlights “egregious” serious misconduct

At Mr Szentpeteri unfair dismissal hearing, the Fair Work Commission founds numerous faults with his arguments.

The officer admitted in cross-examination that he had not chosen a seat that would allow him to properly monitor the detainee. Instead, he moved to a more comfortable sofa, put on sunglasses and fell asleep. The commission concluded that Mr Szentpeteri’s actions were intentional and that he had tried to hide his conduct by wearing sunglasses indoors.

It emphasised the seriousness of his conduct, noting that he was responsible for monitoring a vulnerable detainee in a high-risk environment. Falling asleep in such a situation was deemed “egregious” by the Fair Work Commission.

PTSD argument quashed

Turning to Mr Szentpeteri’s argument that his PTSD contributed to falling asleep, the Fair Work Commission found this unconvincing.   

It dismissed Mr Szentpeteri explanation that he had put on his sunglasses to lessen headaches caused by the flashing effects of the television. The commission noted that “these admissions of his conduct are not supported by the PTSD explanations. It found that “they support a deliberate course of conduct by [Mr Szentpeteri] on 23 November 2023.”

Serious misconduct sacking ruled fair

Ultimately, the Fair Work Commission concluded that Mr Szentpeteri’s dismissal was not harsh, unjust or unreasonable. The ruling stated that his actions were inconsistent with the duties of his role and that his conduct created an untenable situation that justified termination.

The commission further noted that the officer had deliberately chosen to sleep on duty and had taken steps to conceal this. This therefore breached the employer’s fatigue management policies and compromised the safety of the detainee under his care.

Mine worker fired for napping wins unfair dismissal  

Another recent serious misconduct case involving a worker who fell asleep on the job is Darren Gardner v Piacentini & Son Pty Ltd [2024]. Darren Gardner began working as a production supervisor at Piacentini & Son in January 2023. In his role, he was responsible for overseeing various operations at the company’s Cataby mine located 150kms north of Perth.

The first incident leading to Mr Gardner’s sacking occurred during a night shift on 7 August 2023. Piacentini & Son alleged that Mr Gardner’s supervisor attempted to contact him on his two-way radio. After receiving no response, the supervisor was told that Mr Gardner had been seen in his truck parked up on the subsoil.

At 9:30pm, the supervisor claimed that he pulled up alongside Mr Gardner’s vehicle and saw him lying in the driver’s seat, which was fully reclined back. He said that Mr Gardner sat up and looked startled to see him.

However, Mr Gardiner’s account of the events differed significantly. He argued to the Fair Work Commission that he was not asleep but was simply “resting his eyes.” He stated that he was focused on completing a pit report and only turned to see what his supervisor wanted after finishing that task.

Worker caught napping again

The following day on 8 August 2023, another incident occurred that contributed to Mr Gardner’s dismissal for serious misconduct. Piacentini & Son alleged that Mr Gardner’s supervisor attempted to contact him on his two-way radio without success. Around 1:00 am, he saw Mr Gardner’s vehicle in the crib room car park.

Upon entering the crib room, the supervisor claimed that he found Mr Gardner leaning back in his chair with his hands folded on his chest, his legs outstretched and his eyes closed. Despite calling Mr Gardner’s name several times he did not respond and only woke up when prompted by the supervisor.

Mr Gardner disputed this version of events. He told the Fair Work Commision that after assisting with a pump recovery, he and a colleague went to the crib room so the colleague could make a coffee. Mr Gardner claimed that he was in the room for about 15 minutes and did not recall hearing any radio calls from his supervisor.

Worker stood down pending investigation

Piacentini & Son subsequently undertook an investigation into the two alleged incidents. Then in September 2023, Mr Gardner was summoned to a meeting with the mine’s superintendent and an HR advisor. He was informed of the allegations against him and was stood down pending further investigation.

Mr Gardner requested that the dashcam footage from the vehicle he was driving on 7 August 2023 be retrieved, believing it would clear him of the allegations. He subsequently attended a show cause meeting where Mr Gardner yet again denied sleeping on the job. He also made another request for the dash cam footage.

Potentially exonerating footage had been wiped

Piacentini & Son attempted to retrieve the dash cam footage. However, the company discovered the footage only went back to 14 August 2023. In his unfair dismissal claim, Mr Gardner told the Fair Work Commission that his employer “did not retrieve the dashcam footage from 7 August 2023 until it was too late.” He also said that there were “deficiencies” in the company’s investigation.

Worker gets dismissed for serious misconduct 

On 14 September 2023, Mr Gardner received a dismissal letter which cited breaches of the company’s code of conduct and health, safety and environmental policies. The letter specifically referenced the incidents on 7 and 8 August 2023, which Piacentini & Son deemed to be serious misconduct.

The company said that Mr Gardner was found asleep on both occasions and had failed to maintain proper communication through the two-way radio system. It also said that Mr Gardner’s pattern of behaviour damaged its trust in him and noted his lack of accountability and remorse.

Fair Work delivers mixed ruling on sleeping incidents

At Mr Gardner’s unfair dismissal hearing, the Fair Work Commission accepted Mr Gardner’s version of events regarding the incident on 7 August 2023. It noted that Mr Gardner’s two-way radio being set to the wrong channel was accidental and not deliberate. This was after Mr Gardner said that “there is a history of the two-way radios in vehicles being accidentally bumped onto other radio channels.” 

However, regarding the events of 8 August 2023, the commission found that Mr Gardner did “fall asleep in the crib room.” Despite this, it concluded that this behavior did not constitute a valid reason for dismissal.

“I find that Mr Gardner did engage in misconduct, but that his behavior did not rise to the bar of a valid reason for dismissal,” Fair Work Commission Deputy President O’Keeffe said. He added that Mr Gardner should have simply received a warning for falling asleep in the crib room.

Serious flaws in investigation process found

The Fair Work Commission acknowledged that Mr Gardner was first informed of the allegations on 6 September 2023, over a month after the incidents occurred. It also accepted that despite Mr Gardner requesting retrieval of the dashcam footage several times, Piacentini & Son did not retrieve it in time. The commission found that these delays “affected the outcome of the investigation.” 

Also criticised was the company’s decision to terminate Mr Gardner for serious misconduct before he had the opportunity to fully respond to the allegations. Mr Gardner received a letter on 7 September 2023, informing him that the allegations had been substantiated, even though Piacentini & Son “did not put the precise allegations to Mr Gardner in writing beforehand.” The Commission observed that this deprived Mr Gardner of “the opportunity to provide a substantive response.”

Serious misconduct sacking overturned

It was also found that key witnesses were not interviewed directly during the investigation. Their written statements were collected by another witness, raising concerns about the impartiality of the process.

“The issues with the way the investigation was conducted are so significant that even if there was a valid reason for Gardner’s sacking, Gardner [would still be found] unfairly dismissed, ” Fair Work Commission Deputy President O’Keeffe said.

Given these findings, the Fair Work Commission ruled that Mr Gardner’s termination was both harsh and unjust. Both parties were directed to provide further evidence and submissions to decide on a remedy.

Have you been sacked for serious misconduct? 

If you are unsure about the requirements for lodging a claim with the Fair Work Commission, we are here to help. At A Whole New Approach, we have dedicated the past 30 years to assisting over 16,000 Australian workers with unfair dismissal claims.

Our expertise extends beyond unfair dismissals to include general protections, forced resignations, redundancy, workplace harassment and more. Don’t let your employer get away with violating your rights; reach out now for a no-obligation discussion about your situation.

Call us today at 1300 766 700 for a free and confidential consultation.