By Mike Toten Freelance Writer

An employer has been ordered to reinstate an employee it had dismissed for allegedly sleeping on the job, then leaving work without notifying anyone. This was because it lacked sufficient evidence and had not followed a fair process before dismissing her.

 

Facts of case

Two other employees had complained that they had seen the employee asleep on the job. When the employee heard about these allegations, she became very emotional and claimed she was unable to work. She was recovering from a work injury at the time and believed that the other employees were bullying her. After two supervisors advised her to take a break, she did so but left work after that and notified management when off the worksite. At the time, other employees said that they had not seen her asleep. 

The next day, management held a meeting in her absence and decided to dismiss her. Meanwhile the employee sent a medical certificate stating she was unfit for work for 4 days. Management requested she attend a meeting on the last of those days (a Saturday). But when she said she could only come in later that day (after attending a medical appointment), management sent her a dismissal letter.

The letter alleged serious misconduct, citing the following:

  • Other instances of sleeping on the job, one of which had triggered a warning about two years earlier
  • Leaving her work station without notification, leaving an unqualified employee in charge

It claimed this amounted to unsatisfactory work performance, failing to follow company procedures and wilful neglect.

The medical appointment above had diagnosed her with insomnia, anxiety and depression.

The Fair Work Commission (FWC) noted that the employer had not called on the two employees who had complained to provide further evidence. It had also provided other reasons for dismissal that were not mentioned in the dismissal letter and had not set out its allegations in detail (eg what was a “poor attitude”). The purpose of calling the employee into the meeting had been to dismiss her, not seek a response before making a decision. The allegation that she had left work without notifying anyone was false. Given her emotional state before leaving work, a directive to stay at work was unreasonable, as was insisting on the timing of the meeting with her four days later. Unanticipated personal leave in these circumstances did not amount to misconduct.

 

Decision

The dismissal was unfair, due to lack of evidence of misconduct (and therefore lack of a valid reason for dismissal) and failure to implement the dismissal in a procedurally fair manner. The evidence had not established that the employee was asleep on the job.

The FWC ordered that the employee be reinstated.

 

What this means for employers

This is an example of an employer “jumping the gun”. In its haste to get rid of an employee it apparently did not want, it failed to collect or examine sufficient evidence to justify dismissal, and then expedited the process so that the employee did not have an opportunity to challenge the decision and explain her side of the story.

When calling employees into a meeting to discuss their employment in circumstances such as this case, a decision whether to dismiss should not be made until AFTER the meeting.

 

Read the judgment

Kylie Wykes v Wilmar Sugar Pty Ltd [2025] FWC 1811 (3 July 2025)