Asleep at the Switch: Can you fire a worker for sleeping on the job?

Can a unionized employer – a municipal government, say – fire a worker for sleeping on the job?

Not the City of Toronto worker. This stock photo is from http://www.sxc.hu/photo/656292

Not the City of Toronto worker. This stock photo is from http://www.sxc.hu/photo/656292

 

Public Displays of Exhaustion

As you probably already know if you live in Toronto, a few weeks ago a city employee was found head down on desk, office door wide open, fast asleep.

The reason you already know this is that a city councillor, Georgio Mammoliti, decided that it would be a good idea to send a photograph of the sleeping worker directly to the press. This is not, I hasten to add, what my field refers to as a human resources solution.

Mayor Rob Ford has also weighed inpun intended – with the opinion that not only should the worker be fired for sleeping on the job, but that his or her supervisor should be, too.

I can’t give advice the City of Toronto on any particular case, of course, and in this particular case, there are far too many unknowns to even try. But surely I can say that a worker in any industry who is photographed sleeping on the job deserves to be fired, right?

Well . . . maybe not.

Premeditated Sleeping

Judging by the volume of case law on the subject, sleeping on the job happens surprisingly often in Canadian workplaces. Indeed, there are so many cases that an exhaustive survey would be impossible, even though I am limiting my review to labour arbitration cases from unionized workplaces rather than drifting off into the non-union world. For the purposes of this post, however, I’ll just run through a few decisions, to make sure your eyes aren’t closed to the legal principles involved.

First, the case law draws an important distinction between deliberate and accidental sleeping. No, I am not making that up. Take it from the respected labour arbitrator William Marcotte in the 2006 decision of Lecours Lumber Co.:

As can be seen from the above cases, an important consideration for purposes of determining the appropriateness of disciplinary discharge is whether or not the employee deliberately intended to sleep on the job. Where there is found to be such intention, “arbitrators tend to regard situations where employees are found to be deliberately sleeping as justifying discharge.” . . . Certain circumstances surrounding an incident of sleeping on the job have led arbitrators to find that the act was premeditated.

That’s right. Sleeping on the job won’t necessarily get you fired, but my new favourite phrase –  “premeditated sleeping” – probably will.

What are the circumstances that will give rise to a finding of “premeditated sleeping”? Arbitrator Grey’s 1999 decision in Stelco gives a particularly vivid description:

When Mr. MacDonald arrived at CO13 at about 4:30 a.m., much of the area was in darkness. Messrs. Gilkinson and Kennedy were in a workshop next to the lunchroom. The lights in the workshop were turned off. Mr. Gilkinson was lying prone on an inflated air mattress positioned on top of a picnic table, asleep. His boots were off. His head was on the pillow portion of the mattress. Mr. Kennedy was also asleep, lying prone on a chaise lounge liner laid out on top of a workbench. His boots were off. His head was on a pillow of rags. Mr. Earle was in the lunch room adjoining the workshop where Messrs. Gilkinson and Kennedy were sleeping. He was asleep, lying prone directly on a picnic bench. He was wearing his boots. The lights in the lunchroom room were off.

There was an alarm clock in that room set for 5:50 a.m. (Those who relieve night shift electricians would arrive between 6:15 a.m. and 6:30 a.m.) Mr. Van Mol was in an office down the hall from the area where the others were sleeping, the office where the drive files and computer terminal were located. He was asleep, lying or reclining on top of a desk, covered with a winter coat. His boots were off. The office lights were turned off. The office door was locked. Mr. MacDonald found him there when he used his key to enter the office to consult the drive files and use the computer terminal.

Ironically, the fact that our City of Toronto worker was photographed, head down on desk, makes it less likely that he or she can be fired for it. If this had been a case of premeditated sleeping, the worker probably would have found a more comfortable position, or at least closed the door.

Accidentally in Slumber

 

Of course, employers are still entitled to sound an alarm when an employee is sleeping on the job accidentally. That is especially true when the employee’s job requires alertness for safety reasons, such as a crisis counsellor at a women’s shelter in one 1996 case, or another 1996 case in which the job title of the sleeping employee was – again, I am not making this up – Awake Night Staff. Arbitrators agree that workers who are found sleeping on the job deserve discipline. The question is whether they deserve to be fired.

The answer to that question will depend on a number of different factors. These include the employee’s seniority, past disciplinary record, explanation for sleeping (an employee who is taking medication that causes drowsiness might be treated very differently than an employee who simply stayed out too late at the bar the night before), whether the employee acknowledged wrongdoing and showed remorse, and whether the employee’s behaviour actually resulted in harm to the employer’s operations or reputation.

Thus, termination was upheld for the crisis counsellor at the women’s shelter, in light of the risks if he could not be trusted to remain alert. Termination was also upheld where an employee with two previous suspensions displayed a “lack of candour” and a “failure to acknowledge fault.” On the other hand, an arbitrator overturned a termination of employment for an employee with a clear disciplinary record who had taken active steps after the incident to make it less likely to be repeated. Another employee got to save his job since the sleeping incident was related to his diabetes and he clearly showed remorse.

Perchance to Dream

The fact is, we just don’t know any of these things about the city worker who has Councillor Mammoliti and Mayor Ford so wired up. That’s why it’s not appropriate for us to lie back and guess at whether this particular worker deserves to be fired – and why it’s not appropriate for city councillors to leak photographs of their own employees to the media before going through the internal investigation that would actually be required to put this issue to bed.

When it comes to the worker’s supervisor, chances are that he or she is not unionized, so the city could fire that person whenever it wanted. But the city would have to provide reasonable notice or pay in lieu, which, depending on the supervisor’s years of service, could add up to quite a large sum.

And if the Mayor believes that he can fire a supervisor for cause, and avoid paying him anything, just because one subordinate, on one occasion, was (literally) caught napping?

All I can say is, dream on.

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