Fair Work Commission appeal against ‘sleeping on the job’ decision

13 September 2023

BS v Active Crane Hire Pty Ltd [2023 FWCFB] 152

On 1 September 2023, BS (Applicant) succeeded in an appeal in the Fair Work Commission against a decision of Deputy President Boyce issued on 25 January 2023. BS had applied for an unfair dismissal remedy against his former employer, Active Crane Hire Pty Ltd (Respondent). The Respondent’s reason for dismissing the Applicant was unsatisfactory performance involving sleeping on duty.

In the decision at first instance, Deputy President Boyce had held that sleeping on duty was a valid reason for dismissal. However he also found that the absence of procedural fairness during the dismissal required a remedy for the Applicant. Deputy President Boyce was “satisfied that reinstatement of the Applicant to the Respondent’s employ [was] inappropriate” because “the Applicant [had] shown no contrition or remorse for his conduct” (sleeping on duty) and that there was “clear animosity between the Applicant and the Respondent’s management.” He concluded that compensation was appropriate and ordered the Respondent to pay the gross sum of $6,043.93 plus superannuation.

BS appealed against Deputy President Boyce’s decision not to reinstate him.

Invalid reason for dismissal

The Full Bench held that the Deputy President accepted evidence from witnesses claiming they saw the Appellant lying down asleep in the bed of the truck, but did not consider evidence from the yard manager that he had “knocked the boys off around 2:30”. The Full Bench determined that there was “no proper basis for [Deputy President] to find that there was a valid reason for dismissal because the [Applicant] was sleeping on duty where this was after [Active Crane] had determined to shut its site and cease work at 2:30pm”. The Full Bench found this to be “a significant error of fact that casts doubt on whether a valid reason for dismissal existed”.


The Appellant’s grounds of appeal were concentrated on the Deputy President’s decision that reinstatement was inappropriate. These grounds stated that “the Deputy President failed to address a substantial component of the Appellant’s case on remedy, namely, that reinstatement should be ordered as there has been no loss of trust and confidence as between the Appellant and Respondent and that there could be a sufficient level of trust and confidence to make the employment relationship viable and productive”. BS had also argued that the Deputy President “made a significant error of fact in holding that there was clear animosity between the Appellant and Respondent”. The Full Bench held there was no evidence to support such a finding and that BS had not been put on notice by the Deputy President that he was forming that view.

The Full Bench agreed that the Deputy President failed to address a substantial component of the Respondent’s case in relation to remedy. It ordered that the question of remedy be remitted to Commissioner Johns for redetermination, at which time it is expected BS will again pursue reinstatement.

Lessons for employers

Sleeping on the job is usually held to be a valid reason for dismissal. However, being asleep at the workplace might be different, especially if there is evidence of work having finished for the day. And whether or not a valid reason exists for a termination of employment, employers should always consider what evidence may be required when it gets to the stage of resisting an application for reinstatement.