Sleeping on duty

Is the employee “sleeping”?

When the employer suspects an employee of sleeping on duty, it is vital to confirm that the employee is actually sleeping by doing the following:

• Ensure a witness is present
• Record the employee’s behaviour and appearance. Request witnesses to also record their observations and make sure that all these records are in writing.
• Investigate if the employee is in fact sleeping by checking the following:
  • Is the employee conscious?
  • In what position is the employee?
  • Is the employee making any noises, e.g. snoring?
  • Are there any other physical indicators that the person is sleeping?
• Try attracting the employee’s attention by doing the following:
  • Speak to the employee and call him/her by name;
  • Knock on the door or make a similar noise, e.g. clapping your hands together;
  • Gently shake the employee’s shoulder or back.
  • Repeat these steps until the employee shows an reaction.

Evidence of these steps taken must be recorded by putting all observations in writing as well as taking photos and other footage.  The person taking the footage must also act as a witness when the employer takes disciplinary action.

Disciplinary code

Disciplinary procedure

We advise employers to follow these steps when an employee is sleeping on duty:

• Consult with the employee – During this consultation the employer must discuss the offense with the employee and also give the employee the opportunity to present more information and explain the situation from his/her point of view.
• Determine the sanction – The sanction is determined by the seriousness of the offence.  To establish if the sanction is fair, the employer must consider the facts of the case as every case has its own merits.  It is important to note that the employer must prove on a balance of probability that the employee is guilty before imposing any sanction.
• Take disciplinary action – A disciplinary code is vital to ensure that there are clear rules in the workplace, with appropriate sanctions, for employees to follow.  When these rules are broken the employer can apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing.  The employer must take note to keep detailed records of employees’ misconduct and sanctions applied.

Be proactive

We advise employers to implement proactive measures to reduce sleeping on duty and misconduct in general, by doing the following:

• Ensure all meal breaks and rest periods comply with applicable labour law.  The Basic Conditions of Employment Act prescribes a one hour meal break after five hours of work, which may be shortened to half an hour by agreement.  The employee is also entitled to a weekly rest period of 36 consecutive hours.
• Include proactive clauses in the employment contract that require the employee’s permission, e.g. to install cameras in the workplace.  The employer can then, when he/she suspects misconduct, immediately install cameras in the workplace without then trying to obtain the employee’s consent which can possibly alert the offender.
• Ensure the disciplinary code is relevant and up to date in terms of offenses and appropriate sanctions.  The employer must also be able to prove that all employees are aware of what the code entails – we advise employers to have a meeting where the disciplinary code is discussed and circulate an attendance register as proof.
• Encourage employees to report dishonest conduct of co-workers.  Every employee has the duty to act in good faith in the interest of the employer and report any misconduct by co-workers.  When an employee is not guilty of an offence, but was aware of the misconduct and did not report it to the employer, the employee violated the trust relationship and can the employer take disciplinary action against such an employee.

All employers have two goals:  to make a profit and be sustainable.  Employers should therefore consistently evaluate all factors that can have an influence on the long term success of the business and manage labour risk proactively by implementing clear rules in the workplace and following the correct procedures with regards to all labour matters, especially dismissal and general discipline in the workplace.