The Imminent Legal Peril of a Catnap on Duty

Picture this: the rhythmic hum of office machinery, the soft glow of computer screens illuminating rows of diligently working employees… and amidst it all, the subtle rise and fall of a colleague’s chest as they indulge in a stealthy nap. We’re diving into the hilarious yet perilous world of workplace napping – a practice that toes the line between audacious relaxation and potential legal trouble. In this article, we’ll uncover the comical mishaps and legal tightropes of covert snoozing, dissecting the age-old dilemma of catching Z’s when you should be earning them. So, grab your pillow and your best poker face as we explore the wild world of stealth napping and its labour law consequences.

In the recent Johannesburg Labour Court case, Sibanye Gold Protection Services (Pty) Ltd v CCMA, an employer dismissed an employee for sleeping on duty, whereafter the Commissioner ordered retrospective reinstatement. The Applicant in the matter, the employer, averred that the Commissioner had committed various irregularities, relying solely on pictures from an inspection in loco and his personal observations for substantive fairness, furthermore the Applicant contended that it was irregular for the Commissioner to dismiss evidence submitted by the Applicant purely for inconsistencies. Lastly, the Applicant conceded that the Commissioner failed to consider the totality of the evidence and in such, the Commissioner committed a gross irregularity when he found that the Chairperson of the hearing doubted the Applicant’s guilt. The Applicant submitted that the Commissioner should have allowed the parties to comment on his observations.

It is important to note that sleeping whilst on duty will rarely be seen as justification for dismissal at first offence, except if the employee is in a position where a momentary lapse in concentration could have serious consequences for the employee or others (for example, a security guard). It is thus clear that there will be a difference in the consequences of being caught sleeping whilst on duty between a security guard and administration staff member of the same company.

Special cognisance must also be paid to the employer’s disciplinary code. Schedule 8 of the Labour Relations Act also stipulates that dismissal is only appropriate for those serious offences that would make “a continued employment relationship intolerable”. These offences include, but are not limited to, gross insubordination, endangering the safety of others, assault and gross dishonesty. Employers are strongly encouraged to have a policy in the workplace that addresses sleeping whilst on duty and the applicable discipline measures should an employee be caught in transgression of said policy.

Should an employer harbour a suspicion that one of their employees is sleeping on duty, the employer must ensure there is sufficient evidence by:

• Ensuring a witness is present who will be able to testify at a disciplinary hearing that the employee was in fact sleeping whilst on duty;
• Capturing detailed notes on how the employee reacted after their name was called;
• Capturing detailed notes on the circumstances surrounding the area where the employee was caught sleeping as well as noting down any objects the employee might have used to be more comfortable; and
• The position in which the employer and the witness caught the employee sleeping.

Should you find yourself in a situation involving the above, it is highly advisable to contact our offices for the necessary advice and assistance.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.