The Complainant worked for the Respondent as a security officer from December 2015 until 31st January 2020 when he was dismissed for gross misconduct relating to a ‘sleeping on duty’ incident.

The incident in question was stated to have occurred on the 6th and 7th January 2020 when the Complainant fell asleep for 90 minutes during a 12-hour shift.  The Complainant disputed the allegation that he was asleep and argued that the entire disciplinary process, from the initial investigation onwards was biased, and it also gave no consideration to the impact working night shifts was having on the complainant’s health.  The Complainant had emailed the company 2 weeks prior to the incident outlining concerns that night working was having on his health and expressed interest in applying to a day shift vacancy which had arisen.

The Respondent’s position is that the Complainant’s request to move to the day shift position could not be accommodated at that time; however, the situation changed, and he was invited to apply and attend for an interview for the vacancy.  He was unsuccessful in his application because of his attendance /absentee record and also because some of the answers he provided were not up to the standards expected.

In relation to the ‘sleeping on duty’ incident the Respondent argued that the Complainant was observed to be sleeping whilst sitting at the reception desk of the Respondent’s client’s bank. The Respondent’s client has a zero-tolerance policy on this issue and the Respondent had substantial CCTV footage of the Complainant taken over the period of 90 minutes period.

The Adjudication Officer found that the process carried out by the Respondent leading to the decision to dismiss the Complainant was not flawed – the Complainant was at every stage of the process informed of his right to be represented, was given an opportunity to voice his defence, was given all of the documentation relied on by the Respondent in the decision-making process and was given and did exercise his right of appeal.  Taking into account the seriousness of the issue for the Respondent and their relationship with their client the Adjudication Officer found the decision to dismiss within the band of reasonable responses.

In relation to the allegation that the Complainant was dismissed for raising health and safety concerns the Adjudication Officer did not find that the complaint met the threshold of a protected act, and the Complainant was dismissed for sleeping while on duty on the 6th January.

Guidance for Employers

While the dismissal in this case was not found to be unfair, the subject matter regarding health and safety concerns while working on nightshift is of interest.  The Organisation of Working Time Act 1997 requires employers to offer health assessments for night workers before and also periodically during time spent night working.  If an employee becomes ill as a result of night work, an employer must provide, where possible an alternative to night work.  Employers should ensure therefore that regular health assessments are carried out for night workers.
https://www.workplacerelations.ie/en/cases/2022/february/adj-00028233.html