Napping Truck Driver Unfairly Sacked: Fair Work Commission

The nation’s industrial tribunal has found a worker sacked for sleeping on duty was dismissed unfairly by his employer because of an absence of procedural fairness in the dismissal process.

What happened

The worker was employed as a Truck Driver and General Yard Hand in 2020.  He was dismissed in April 2022 after he was witnessed asleep in a truck in his employer’s truck yard. The Fair Work Commission (FWC) heard the worker was dismissed verbally shortly after he was witnessed sleeping on duty on 7 April, and the dismissal was confirmed in writing the following day. 

The worker told the FWC he was not asleep on duty and that he was simply resting in a truck in the yard due to inclement weather.  He said he was taking shelter from a torrential downpour.  The FWC, however, accepted the worker was asleep in the truck and that he had no reason to be resting or escaping the rain in the truck.  That was so because the conduct was contrary to his employer’s inclement weather procedures and there was always work to do indoors if work in the yard could not be done due to the weather. 

Outcome

Deputy President Boyce of the FWC determined there was a valid reason for dismissal but the dismissal was devoid of procedural fairness. The Deputy President was satisfied the worker was dismissed on the spot, despite the employer’s efforts to suggest it sought to engage in a procedurally fair dismissal process.  Deputy President Boyce went on to find that the worker had continued to deny he was asleep and shown no remorse for his conduct.  The Deputy President said that, had the employer effected the dismissal in a procedurally fair way, it is unlikely the dismissal would have been found to be unfair. 

The Deputy President determined that reinstatement of the worker to the employment was inappropriate.  The FWC will separately consider whether compensation should be awarded to the worker for his unfair dismissal.