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Lawful to summarily dismiss employee who fell asleep during shift

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calendar 21 February 2020
globus Denmark

Security guard with 30 years of seniority who fell asleep during a shift could lawfully be dismissed without notice. Despite his argumentation that the event was excusable as it had been triggered by sickness, the arbitrator noted that the employee had previously fallen asleep during working time and that his fatigue was most likely caused by the number of working hours prior to his shift. The arbitrator also emphasised that in his position as a security guard, the employee could have caused substantial damage to the customer as well as the company.

The case concerned a security guard who was employed in one of the biggest security companies in the world. After approximately 14 years as security guard at the premises of another customer, the employee was transferred to the company’s department for temporary assignments. The transfer was a result of claims that the employee had fallen asleep during working time. As part of his new position, the employee would perform services as a security guard at the premises of three Danish ministries. The ministries were one of the highest profiled customers of the company and was at the same time placed at the top safety category. The reason behind this is that ministries are an exposed target for demonstrations, political action, and, in the worst case, terror. As part of the assignment, the employee became part of a team consisting of three guards of which two would guard the entrance area while the other would keep watch from the guardroom.

After a couple of months in the position, the employee came to work one morning feeling sick. According to him, he was experiencing flu-like symptoms, but declined when asked whether they should request a replacement for the shift. Later that day, when the employee was guarding the guardroom, he dozed off. One of the other guards notice that he had fallen asleep and took a photo. When the company became aware of the photo of the sleeping employee, he was summarily dismissed.

Pursuant to the employee, the summary dismissal was unlawful and as a result, he was entitled to his salary as usual during his notice period. The company maintained that the summary dismissal was justified and referred to the personnel policy which stated that although allowed, any sideline occupation should not have influence on the performance of the work for the company. Prior to the shift where the employee had fallen asleep, he had worked more than 60 hours over the 6 previous days. Of these, 24 hours had been carried out as part of his sideline occupation as a parking attendant. At the same time, the company emphasised that besides for breach of the personnel policy, the guard had materially breached his duties, as his action could have caused substantial damage for the customer as well as the company. In response, the employee maintained that he had not fallen asleep due to his sideline activity but because he had felt sick during the shift. Supporting this argument, he noted that as he had taken holiday in the beginning of the month, he had been well rested during the shift and would not otherwise have fallen asleep. On a final note, he argued that in any case, summary dismissal had to be considered too radical in light of his long seniority.

The main question for the arbitrator was, therefore, whether or not the summary dismissal could be considered lawful.

Breach of trust and the personnel policy justified summary dismissal

With reference to the general principles of employment law, the arbitrator initially stated that summary dismissal presumes that the employee has materially breached the terms and conditions of employment. When an employee without permission or other legitimate reason falls asleep during working time, a concrete assessment is therefore required.

Concerning the sideline activity, the arbitrator found that the employee had taken on a high number of working hours and noticed that it was not the first time, he had fallen asleep during working time. At the same time, the arbitrator concluded that irrespective of the fact that the employee had 30 years of seniority, he had exposed the customer and the company to a risk of substantial damage by falling asleep. On this basis, the arbitrator found it justified that the company could no longer trust the employee to perform his work without falling asleep. Conclusively, the arbitrator found that summary dismissal could not be considered as a measure which was too radical towards the employee.

On a final note, the arbitrator also emphasised that companies are not generally entitled to dismiss employees who have fallen asleep during working time. The assessment must always be concrete and based on the actual circumstances surrounding each case.

IUNO’s opinion

The case confirms that although the threshold for summary dismissal as a main rule is high, it is not always necessary to issue a written warning to the employee beforehand. Consequently, if the breach is sufficiently material, the company may proceed directly to summary dismissal.

IUNO recommends that companies have clear rules governing the right of employees to take sideline occupation outside normal working time. Nonetheless, as cases concerning summary dismissal often are very concrete, companies should always first seek legal advice before taking any measures towards the employee.

[Industrial Arbitration case FV2019.0149 of 29 January 2020]

The case concerned a security guard who was employed in one of the biggest security companies in the world. After approximately 14 years as security guard at the premises of another customer, the employee was transferred to the company’s department for temporary assignments. The transfer was a result of claims that the employee had fallen asleep during working time. As part of his new position, the employee would perform services as a security guard at the premises of three Danish ministries. The ministries were one of the highest profiled customers of the company and was at the same time placed at the top safety category. The reason behind this is that ministries are an exposed target for demonstrations, political action, and, in the worst case, terror. As part of the assignment, the employee became part of a team consisting of three guards of which two would guard the entrance area while the other would keep watch from the guardroom.

After a couple of months in the position, the employee came to work one morning feeling sick. According to him, he was experiencing flu-like symptoms, but declined when asked whether they should request a replacement for the shift. Later that day, when the employee was guarding the guardroom, he dozed off. One of the other guards notice that he had fallen asleep and took a photo. When the company became aware of the photo of the sleeping employee, he was summarily dismissed.

Pursuant to the employee, the summary dismissal was unlawful and as a result, he was entitled to his salary as usual during his notice period. The company maintained that the summary dismissal was justified and referred to the personnel policy which stated that although allowed, any sideline occupation should not have influence on the performance of the work for the company. Prior to the shift where the employee had fallen asleep, he had worked more than 60 hours over the 6 previous days. Of these, 24 hours had been carried out as part of his sideline occupation as a parking attendant. At the same time, the company emphasised that besides for breach of the personnel policy, the guard had materially breached his duties, as his action could have caused substantial damage for the customer as well as the company. In response, the employee maintained that he had not fallen asleep due to his sideline activity but because he had felt sick during the shift. Supporting this argument, he noted that as he had taken holiday in the beginning of the month, he had been well rested during the shift and would not otherwise have fallen asleep. On a final note, he argued that in any case, summary dismissal had to be considered too radical in light of his long seniority.

The main question for the arbitrator was, therefore, whether or not the summary dismissal could be considered lawful.

Breach of trust and the personnel policy justified summary dismissal

With reference to the general principles of employment law, the arbitrator initially stated that summary dismissal presumes that the employee has materially breached the terms and conditions of employment. When an employee without permission or other legitimate reason falls asleep during working time, a concrete assessment is therefore required.

Concerning the sideline activity, the arbitrator found that the employee had taken on a high number of working hours and noticed that it was not the first time, he had fallen asleep during working time. At the same time, the arbitrator concluded that irrespective of the fact that the employee had 30 years of seniority, he had exposed the customer and the company to a risk of substantial damage by falling asleep. On this basis, the arbitrator found it justified that the company could no longer trust the employee to perform his work without falling asleep. Conclusively, the arbitrator found that summary dismissal could not be considered as a measure which was too radical towards the employee.

On a final note, the arbitrator also emphasised that companies are not generally entitled to dismiss employees who have fallen asleep during working time. The assessment must always be concrete and based on the actual circumstances surrounding each case.

IUNO’s opinion

The case confirms that although the threshold for summary dismissal as a main rule is high, it is not always necessary to issue a written warning to the employee beforehand. Consequently, if the breach is sufficiently material, the company may proceed directly to summary dismissal.

IUNO recommends that companies have clear rules governing the right of employees to take sideline occupation outside normal working time. Nonetheless, as cases concerning summary dismissal often are very concrete, companies should always first seek legal advice before taking any measures towards the employee.

[Industrial Arbitration case FV2019.0149 of 29 January 2020]

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Anders

Etgen Reitz

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Søren

Hessellund Klausen

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Kirsten

Astrup

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Nina

Kumari

Associate

Cecillie

Cathrine Groth Henriksen

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