Woman sleeping at work awarded 6 months’ pay and $18K compensation…

The Employment Relations Authority has upheld a personal grievance claim and found that an employee was unjustifiably dismissed after they were filmed sleeping during three night shifts. As a result, the Authority ordered the employer to pay the employee $18,750 in compensation, and six months of lost wages, holiday pay and KiwiSaver contributions (minus a 25% reduction for the employee’s own contribution to the dismissal).

The employee was a recovery support worker who worked at the employer’s residential care premises for residents with high needs. She was dismissed after working for the charity for 18 years, due to her being filmed sleeping during three 12-hour shifts.

She was recorded by a camera placed on top of lockers in a room that was used by staff and for residents’ recreation. The employer alleged that the employee slept on duty in an intentional and premeditated manner which was considered serious misconduct. A disciplinary meeting was held, and later the employee was dismissed without notice.

The employee raised a personal grievance with the Authority for unjustifiable disadvantage and unjustified dismissal, claiming there was an agreement, or understanding, that she could sleep during her combined breaks on the 12-hour shifts.

In it’s determination, the Authority agreed that night shift employees had an understanding from a meeting in 2021 that they were able to sleep during their shifts and that while there is no contractual entitlement to sleep, the employees did have a legitimate expectation that it was okay. The Authority also highlighted how management knew sleeping on shifts was occurring and while there were general reminders given not to, a blind eye was being turned to it.

Only months prior, the employer had changed their night shift structure from 16-hour shifts to 12-hour shifts, this done in part to make it easier for staff to complete the shift without sleeping. The Authority noted that at the time of this change, the employer could have issued an explicit, written statement that with the change in shift duration, the understanding around sleep was no longer applicable and that there was no longer to be any sleeping during work. The Authority’s determination said the employer could have drawn the line, but that did not happen.

The Authority also decided in regard to the act of filming staff that the employer did have very slim justifications for filming so as to properly investigate the sleeping.

The employee was not reinstated to her position, as management staff had said they intended to resign if she was. As such the Authority deemed it unreasonable to order reinstatement. However, substantial financial compensation and lost wages were awarded to the employee.

It is important that investigations of misconduct are handled correctly. It can be very expensive when they are not. It pays to get the process right.

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