Most of us would agree that sleeping on the job is good cause for dismissal, but many employers have fallen into the trap of acting too quickly when they catch a sleeping beauty at work. It’s important to inquire into whether the employee was in fact sleeping on the job and to test whether there are any genuine excuses for the employee’s doziness.
A recent example involved an Auckland welder who was dismissed for allegedly sleeping on the job, among other things. A co-worker took video of him allegedly sleeping. The Employment Relations Authority found his dismissal was unjustified, saying, “I have viewed the video footage of Mr Williams on the morning of 9 June 2016 and it shows Mr Williams sitting back with his eyes closed. It is not clear to me from the video that Mr Williams was asleep”.
In Taylor v Tennent Hotels Ltd 11 April 2016  NZERA Wellington 43, the Employment Relations Authority found an employee’s dismissal was unjustified, even though that employee acknowledged sleeping on the job. She was employed as a night porter in a hotel. The dismissal was unjustified because the employer did not follow a fair procedure and invite the employee to obtain representation, nor did it allow the employee to explain herself before making its decision.
Similarly, in Graham v Turners and Growers Ltd  NZERA Christchurch 287 a dismissal was found to be unjustified because the Authority determined the employer should have looked more closely at whether there was a medical condition which caused the employee to fall asleep.
These cases demonstrate the importance of following a fair investigation process. Was the employee actually asleep or were they “resting their eyes”? Was there any medical reason for the employee falling asleep? Was there some other extenuating circumstance, such as having to deal with a sick toddler in the middle of the night?
It will be important to look at context. An office worker who falls asleep for 5 minutes at his/her desk is in a different category to a pilot or truck driver who falls asleep on the job, in that the latter places themselves and others at significantly greater risk. Case law shows the importance of investigating the matter properly and not jumping to conclusions if an employee is suspected to be sleeping. The circumstances and consequences (including possible as opposed to just actual consequences) will also be relevant.
Of course, some employees may quite legitimately be asleep in the course of their employment. Some employees work sleepover shifts. Caregivers to the disabled and school matrons are employees who have recently won the right to be paid the minimum wage for sleepovers because they were required to sleep on the premises and attend to any incidents that occurred during the night. These cases were heard by the Employment Court and Court of Appeal, and the Sleepover Wages Settlement Act 2011 was passed as a response to this litigation. The Court of Appeal case involved caregivers for the disabled: Idea Services Limited v Phillip William Dickson  NZCA 14. Whether or not an employee on a sleepover is entitled to the minimum wage depends on the circumstances, including the restrictions imposed on the employee and how often they are called upon to work.
As a final note, while in New Zealand we generally frown upon sleeping on the job, in Japan it can be socially acceptable. The Japanese call sleeping on the job “inemuri” and it can be a sign of dedication to the job, demonstrating that the sleeper spends so much time at the office that he or she can’t sleep at home. Apparently one has to remain upright while sleeping to avoid appearing slovenly.