Worker accused of sleeping on the job wins reinstatement

The Fair Work Commission recently dealt with an unfair dismissal case that involved allegations that a worker slept on the job.

A worker was dismissed from her role at Wilmar Sugar, with her employer alleging that she had an “intolerable breach”, with a number of her colleagues claiming that she was “sleeping on the job during [her] shift”.

“As is the case with all intolerable breaches that do not result in termination, you were notified that ‘any further breach of discipline will almost certainly result in termination of employment’,” said her employer.

According to the proceedings in the FWC, included in the dismissal reasoning was the allegation that the worker also left her station and site – only notifying her supervisor after she had gone – allegedly leaving an unqualified employee of whom she was “responsible for training”. The employer alleged that this “affected production and throughput ability of the mill”.

“Wilmar Sugar and Renewables considers it has no option but to terminate your employment due to an unsatisfactory standard of work performance, failure to follow company procedures and policies, and wilful neglect,” said the termination letter.

The worker’s account of the lead-up to her dismissal showed a different picture from that presented in her termination letter. The employee had previously received a warning back in November 2023 over sleeping allegations and “poor attitude to work colleagues and the production team”.

This meant that if she were to have breached similar regulations within a year’s time span, her employment would be terminated.

Fast-forward to September 2024, the worker had months prior suffered a physical injury on site, causing her pain for an extended period of time, right through to her dismissal. On the night that her employer alleges she left the site without notice, the worker first arrived to her shift and was met with the news that two of her colleagues had made fresh allegations that she was yet again sleeping on the job.

Distraught with what she deemed as untruthful allegations and fearing the repercussions based on her previous warning, the worker quickly became what she described as a “blubbering mess”.

She claimed that she informed her supervisor of the state she was in, saying words to the effect of “the bullying from the other operators was too much” and that she was exhausted from being on the cover roster all season.

The supervisor was informed by the worker that she was going home, to which the supervisor and another colleague told her to take a 30-minute break instead. Ten to 15 minutes into this break, however, the worker left the smoko room and the site, sending a text message to the supervisor to say: “I’m out for tonight.”

In the consideration of whether the dismissal was harsh, unjust, or unfair, deputy president Terri Butler went through the allegations made against the worker that led to her eventual dismissal.

According to Butler, the evidence “does not establish” that the worker had been sleeping on the job. On top of that, Butler claimed that the termination letter was “incorrect” in terms of her notifying her supervisor that she was departing from the site.

“She had already advised [the supervisor] at her workstation ... I do not accept that [the worker] left and notified her employer only after leaving,” he said.

Overall, the dismissal process in itself was found to have been flawed, as the worker was never given an opportunity to defend herself or to “respond before the decision to dismiss”.

In the decision, Butler concluded that the worker had, in fact, been unfairly dismissed, granting the worker pay and reinstatement remedies moving forward.

“I have decided that the [worker] was unfairly dismissed, and I have decided to make orders for reinstatement, continuity of service and period of continuous service, and lost pay,” said Butler.