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Dismissal For Being Asleep While On Duty by Ashgar Ali Ali Mohamed

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Published by THE LIBRARY, 2021-04-21 00:21:10

Dismissal For Being Asleep While On Duty

Dismissal For Being Asleep While On Duty by Ashgar Ali Ali Mohamed

[2016] 2 ILR Industrial Law Reports xxxi

Dismissal For Being Asleep While On Duty

by

Ashgar Ali Ali Mohamed *

Introduction

Generally, the employer will officially prescribe the contractual working
days and hours for its employees including a certain number of free hours
in the mornings and in the afternoons. In some occupations, employees are
required to work shifts wherein their hours may be different from the
standard working hours of other employees and whereby their days of rest
would be other than on the weekends. Whatever the prescribed official
working days and hours of an employee, it goes without saying that an
employee is required to do the job honestly and faithfully, by performing
all of the duties required of him or her, under the contract of employment,
to the best of his or her skill, ability, experience and talents. He or she is
also required to exercise reasonable care and skill in performing the work.

Falling asleep or taking a nap during working hours, whether intentionally
or otherwise for example, due to being unwell, or due to the consumption
of medication which induces drowsiness, or due to tiredness for having
worked overtime or a double shift or due to a mere disinterest in the work,
amongst other things, is a serious matter which may result in disciplinary
action or even the termination of employment. Besides projecting an

L A Wunprofessional appearance, sleeping while on duty can adversely affect

productivity and may cause a workplace hazard especially in cases where
an employee’s duty is to watch and prevent a hazardous situation from
happening. For example, air traffic controllers, who are supposed to be
guiding the planes, if found asleep during their shifts, can pose a serious
public safety problem and security guards, who are assigned to protect the
employers’ property, if found asleep while on duty, may result in break-
ins to the employers’ premises, thereby causing a loss to their employers’
property. Further, falling asleep while on driving duty, is in fact one of the
major factors contributing to motor vehicle crashes. In the above
mentioned situations, the employees in fact compromise the employers’
duty to ensure safety at the workplace. In light of the above, this article
focuses on whether the misconduct of sleeping while on duty or sleeping
on the job constitutes a good ground for termination of an employees’
contract of employment.

* Department of Civil Law, Ahmad Ibrahim Kulliyyah of Laws (AIKOL)
International Islamic University Malaysia (IIUM). [email protected]

xxxii Industrial Law Reports [2016] 2 ILR

Safety At The Workplace: The Employer’s Duty

An employer is required to ensure that the workplace is free of all known
health and safety hazards in order to prevent workplace accidents and
injuries from happening. It must take reasonably practicable steps to
protect the health and safety of its employees in all the circumstances of
their employment. At common law, an employer can be liable for
foreseeable injuries which could have been prevented by taking the
necessary precautions.1 This common law duty is reinforced by the
Occupational Safety and Health Act 1994 (‘Act’), which imposes on the
employer a duty, inter alia, to take reasonable care for the health, safety
and welfare at work of all its employees and to seek to prevent workplace
injury, disease and death, amongst other things. An employee who
reasonably believes the working conditions to be unsafe or unhealthy, may
file a complaint with the Department of Occupational Safety and Health.
It is illegal for an employer to fire, demote, transfer or otherwise retaliate
against a worker for exercising their rights under the law.

Likewise, an employee must take reasonable safety and health measures
for himself and anyone else who may be affected by his acts or omissions
at the workplace. In the discharge of his or her duties, the employee must
co-operate with the employer in respect of any action taken by the latter,
in order to comply with any requirements imposed by the Act. In addition,
employees must work in a manner required by the employer, use or wear
any protective equipment or clothing provided by the employer, and

L A Wcomply with any instruction or measure instituted by the employer on

occupational safety and health. The employee must not engage in
improper behaviour that will endanger themselves or others around them.

Under the doctrine of vicarious liability, an employer will be liable to
third parties for the negligent acts or omissions of its employees, provided
that the negligent acts or omissions occur during the course of their
employees’ employment. However, certain requirements need to be
fulfilled first namely; (a) there must be a tortious act or wrong;
(b) a relationship between the person alleged to be vicariously liable and
the tortfeasor must be shown; and (c) the tort must be committed within
the course of employment2. Further, in order for an act to be considered
to be within the course of employment, it must either be authorised by the
employer or be so connected with an authorised act that it can be
considered a mode, although an improper way, of performing the said act.
Once the requirements of vicarious liability are established, the employer,
as the principal, would be liable for any wrongful act done or any neglect
or default committed by its employee. The liability of the employer would
be the same as that in which a principal, being a private person, is liable
for any wrongful act, neglect or default committed by his agent. Every case
will be decided on its own peculiar facts.

[2016] 2 ILR Industrial Law Reports xxxiii

In short, every employer must ensure a safe and productive work
environment. They must guard against the risks to safety from a careless
or even a grossly careless employee. Carelessness or a neglect of job
duties that results in the loss, damage or destruction of company assets or
even injury to other employees or employers’ customers, is taken very
seriously and may subject the employee to disciplinary action including
termination. A clear and obvious example of this kind of risk would be in
relation to an unguarded machine with moving parts. The employee
placed to guard these machines would be required not only to ensure the
proper functioning of the machine but to also guard others from carelessly
becoming trapped or otherwise injured by it. As stated above, an employer
will be held vicariously liable for damage or injury that occurs, due to its
employee’s carelessness or recklessness. Employee carelessness or
recklessness as a ground justifying dismissal is discussed below in relation
to sleeping while on duty or sleeping on the job.

Sleeping While On Duty: A Workplace Misconduct

Sleeping while on duty or sleeping on the job is considered a workplace
misconduct as it compromises an employer’s duty to ensure safety at the
workplace.3 Besides projecting an unprofessional appearance, an
employee is deemed to not be performing the work for which he is being
paid. The seriousness of sleeping while on duty is dependent on the nature
of the duty. In some occupations, it is deemed a minor misconduct in
which a written warning would be sufficient and any further similar

L A Wincidents would result in additional disciplinary action being taken against

the employee, up to and including termination of employment. Whilst in
other jobs, sleeping while on duty is considered a gross misconduct and
may be a ground for dismissal.4 For example, for pilots, air traffic
controllers, security guards, lifeguards, truck and bus drivers or those
operating heavy machinery, sleeping while on duty would obviously be a
gross misconduct since it would pose a hazard to everyone around if any
untoward accidents were to occur. The fact that the employee did not get
sufficient sleep the night before would not be an adequate excuse.

Since sleeping while on duty is considered a serious misconduct that may
be grounds for disciplinary action, including possible termination of
employment, some companies have addressed this in their employee
handbook. This is further reflected in the collective agreements for
example, in Kesatuan Pekerja-Pekerja Perusahaan Logam v. Lysaght
Galvanized Steel Berhad,5 the collective agreement provides inter alia, that
an employee found sleeping on duty shall be liable to instant dismissal

xxxiv Industrial Law Reports [2016] 2 ILR

without notice. Again, in Paper and Paper Products Manufacturing
Employees’ Union lwn. Chee Wah Corporation Berhad,6 cl. 35(g) of the
collective agreement provides that an employee who is found sleeping
while on duty shall render himself/herself subject to instant dismissal
(summary dismissal) after a due inquiry. In Kesatuan Kebangsaan Pekerja
Perusahaan Petroleum Dan Kimia Semenanjung Malaysia lwn. DIC Epoxy
(Malaysia) Sdn Bhd,7 appendix II to the collective agreement provides inter
alia, that sleeping while on duty may cause the company to conduct a
domestic inquiry or summarily terminate an employee’s service. The
seriousness of sleeping while on duty is further discussed below with
reference to the Industrial Court awards.

(a) Sleeping While On Duty With Unguarded Equipment

Work involving the use of heavy duty machinery or the monitoring of
moving machinery has the potential to cause severe injuries or casualties
if left unattended, such as crushed fingers or hands, amputations, burns or
blindness. Safeguards are therefore essential to protect workers from these
preventable injuries. Sleeping while the machines are left unguarded is a
serious misconduct that may warrant dismissal.8 In Bradken Malaysia Bhd,
Ipoh v. Kesatuan Pekerja - Pekerja Perusahaan Membuat Jentera,9 the
claimant, a machinist, was dismissed when he was found sleeping while
the machine operated by him was moving but the cutting tool was not
cutting the product. Previously, he had been found sleeping while on duty
but he had been given a written warning. The Industrial Court held that the

L A Wcompany had proven that the claimant had been found sleeping while on

duty which had been a grave misconduct.

In Johan Ceramics Bhd v. Mohd Yusof Ali,10 the claimant, a production
supervisor, who was supposed to ensure the proper maintenance and safe
operations of the company’s plant and equipment and the safety of his
fellow workers, was dismissed by the company after a domestic inquiry
found him guilty of sleeping while on duty, during a night shift operation.
In affirming the claimant’s dismissal to be with just cause or excuse, the
Industrial Court stated inter alia, that the claimant’s misconduct could
have caused serious damage to the company’s property and it could have
endangered his fellow workers that had been working during the night
shift, if any accidents had occurred. Further, in Ravi Marimuthu v. Gold
Coin Feedmills (M) Sdn Bhd,11 the photographs tendered as evidence had
clearly shown that the claimant had been sleeping while on duty. The
Industrial Court held inter alia, that such conduct had been serious and the

[2016] 2 ILR Industrial Law Reports xxxv

matter had further been aggravated by the fact that the claimant had been
a Boilerman who had been responsible for the safety of the plant. Hence,
the punishment of dismissal meted out to him had been justified.

In Abdul Hafiz Abdul Hadi v. Acidchem International Sdn Bhd,12 the company
which produces chemicals had employed the claimant as the plant
operator. His duty required him to keep an eye on the DCS monitor in the
control room. COW2 who had been responsible for supervising the staff
in the control room, had found the claimant sleeping while on duty. The
claimant was dismissed from employment after the domestic inquiry panel
found him guilty of sleeping on the job. In affirming his dismissal to be
with just cause or excuse, YA Tuan Rajendran Nayagam, Chairman of the
Industrial Court stated: ‘Surely as a responsible employee, the claimant
cannot behave in the manner he did, jeopardising the operations of the
company. It is implicit in his employment contract that he is to be alert
during the night shift. If he had problems keeping awake, he should have
referred to his superior, COW2. The facts of the case show that COW2
had tried to wake him but the claimant responded very slowly and when
he was ticked off, he lost his cool and assaulted his superior.’

(b) Sleeping While On Guard Duty

Security officers or guards can work in a variety of settings, such as in
public buildings, universities, banks and museums, to name a few.
Employers engage security officers to maintain the security and safety of
their property and premises. One of the duties of a security guard is to

L A Wmake his appearance clearly visible in order to deter criminals. Besides

guarding the employer’s property, they are also expected to monitor and
authorise the entry and departure of the employees, visitors and other
persons, into and out of the employer’s premises. A security guard must
be vigilant at all times to ensure the safety of the area he is engaged to
safeguard.13 The act of sleeping while on duty by a security guard,
undermines the trust and confidence the company has placed in him and
it also undermines the company’s security.14 In Abdul Majid Mohamed v. Du
Security Services Sdn Bhd,15 the claimant was dismissed from employment
as he was caught sleeping/resting under a palm tree when he was
supposed to do guard duty. In Abdul Majid Mohamed’s case, the claimant
who was assigned to do guard duty at Kolej Universiti Teknikal
Kebangsaan Malaysia, was found missing from his post for three hours on
2 December 2006 and on 5 December 2006 he was seen sleeping under a
tree at 2.30 p.m. when he was supposed to be doing his duties. His
dismissal from employment was affirmed by the Industrial Court.

xxxvi Industrial Law Reports [2016] 2 ILR

Again, in Subramaniam Marikkan v. JKL Security Sdn Bhd,16 the claimant,
a security guard, was terminated from service as he was found guilty of
sleeping while on night watch duty. In Hamay Glass Sdn Bhd v. Loganathan
Vadamalai,17 the company dismissed the claimant after the inquiry panel
found him guilty of sleeping during working hours, misusing the
company’s utilities by sleeping in the company’s van with the air
conditioning on, and not being truthful by giving several versions of the
incident when found sleeping on duty. The Industrial Court upheld the
claimant’s dismissal to be with just cause or excuse. Again, in Muniama
Rangasami lwn. Flextronics Technology (Malaysia) Sdn Bhd,18 the claimant, a
Senior Security Leader, was dismissed by the company after she was
found guilty of sleeping at the security office during working hours. The
Industrial Court in affirming her dismissal to be with just cause or excuse,
stated that the claimant, as a security personnel, had been required to be
vigilant at all times to ensure the safety of the area she had been engaged
to safeguard. More so, given the fact that the company had been engaged
in the business of electronic manufacturing services which had required a
high level of security.

In Mohamad Jamaludin Hamid v. Petroliam Nasional Sdn Bhd,19 the claimant,
who had been employed by the respondent as its security guard, to guard
its premises and property, had been found sleeping on duty on a few
occasions in the month of May 2005. In affirming the claimant’s dismissal
to be with just cause or excuse, the Industrial Court stated inter alia, that
the claimant’s conduct of ‘sleeping whilst on duty is inconsistent with his

L A Wobligation as a responsible employee of the respondent, more so as a

security guard for the respondent. His misconduct at the work place had
altered his status as a responsible employee to that of a liability to the
respondent. In the premise, this court is left with no alternative but to
dismiss the claim by the claimant against the respondent. This court
further finds that the dismissal of the claimant by the respondent is for a
just cause and justified in the circumstances.’

(c) Falling Asleep Due To A Physical Ailment Or Drowsy Medication

Can suddenly falling asleep due to a physical ailment or due to a certain
medication taken to relieve pain, be a valid ground for dismissal? The
Employment Act 1955 provides that a sick employee is entitled to paid
sick leave after fulfilling a minimum period of service. The employee must
also inform his immediate supervisor of his inability to continue with his
duties due to the physical ailment. In Dan Kaffe (Malaysia) Sdn Bhd v.
Sahlan Sakial,20 the respondent, an electrical chargeman, was dismissed
after he was found guilty of being asleep in the electrical room during a

[2016] 2 ILR Industrial Law Reports xxxvii

spot check. Based on the admission by the claimant that he had in fact
slept on the job as alleged, the Industrial Court found that misconduct on
a prima facie basis had been proven against him. However, based on his
explanation which had further been corroborated by COW3, a medical
doctor, that he had been suffering from asthma on the day in question and
had thus been drowsy and weak, the Industrial Court found that the
punishment of dismissal had been disproportionate to the said misconduct.
The dismissal was, thus, on this score, held to be without just cause or
excuse.21

Against the said decision, the appellant company applied for an order of
certiorari to quash the award of the Industrial Court. The appellant alleged
that the respondent, by his conduct, had compromised the safety of its
whole operations at the appellant’s premises and put the appellant at risk
of massive losses if anything untoward had occurred and thus, the harsh
penalty of dismissal had been warranted. In dismissing the application, the
High Court held that the Industrial Court had rightly given due
consideration to the second essential question namely, whether the nature
and extent of the misconduct could constitute just cause or excuse for the
dismissal. In particular, Gunalan Muniandy JC stated:

‘The ICC, in essence, held the view that A had not given due consideration
to the explanation advanced by R for the said misconduct which was his
medical condition at the material time. The said misconduct was a single
act of sleeping. COW3 (medical doctor) who testified that the medication
that R had taken could not have induced sleep, was a panel doctor of A and

L A Wnot a specialist to offer any expert opinion on the medical condition of R.

Neither could he be considered an independent witness under the
circumstances. The ICC considered the fact that on the same day R had
received medical treatment for asthma using a ‘nebuliser’ to assist
breathing. She was of the view that A should have probed further into his
actual medical state instead of brushing it aside and focusing only on the
misconduct of sleeping while on duty. In this regard, that he could have
been referred to a medical specialist to determine whether his explanation
for the said misconduct had any basis. For the above reasons, I held that
the ICC in arriving at her conclusion that the severe penalty of dismissal
imposed on R was disproportionate to the misconduct complained of had
taken into account relevant and undisputed facts. She had not based her
decision on irrelevant considerations or extraneous factors. She gave valid
reasons for her decision to interfere with the punishment imposed on R on
the ground of proportionality.’

In Pamol Plantations Sdn Bhd v. Satiyam Sinniah,22 the claimant was
dismissed as he was found to be asleep by his supervisors on three
occasions, within the same shift. He claimed that he had been suffering

xxxviii Industrial Law Reports [2016] 2 ILR

from severe headaches and had taken the opportunity to rest at the work-
site after taking two Panadol pills. The Industrial Court stated inter alia,
that the claimant’s misconduct of sleeping on duty had been serious in
view of a previous similar misconduct and the verbal warnings that had
been given to him. In fact, in this case the company had tolerated the
claimant’s behaviour by offering him employment in a different capacity,
which the claimant had rejected. Again, in The Malayan Thread Co Sdn Bhd
v. Roslan Bin Hussain,23 the claimant was found sleeping while at work by
the General Manager. He claimed that he had not been feeling well but no
evidence had been produced to that effect. The Industrial Court held inter
alia, that sleeping while on duty was a serious misconduct, more so when
the offender was a security guard and therefore responsible for the safety
and security of the area he had to guard. Thus, the punishment meted out
on him had been justified.

Again, in OE Design Sdn Bhd v. Lai Yeu Hoong,24 the claimant was
dismissed for falling asleep while on duty. He alleged that he had not been
asleep while on duty but that he had been feeling drowsy after taking some
cough mixture. He contended that although his doctor had not given him
a medical certificate, he had been cautioned against the side effects of the
cough mixture. The company could not establish that the claimant had in
fact been sleeping while on duty. In holding the claimant’s dismissal to be
without just cause or excuse, the Industrial Court also noted inter alia, that
the claimant had not been cross-examined on his visit to the doctor, his
taking of the cough mixture and whether the cough mixture had in fact

L A Wcaused drowsiness. Again, in Kuala Lumpur Glass Manufacturers Co Sdn

Bhd v. Hamzah Gemok,25 the claimant, a security guard, was caught
red-handed by the General Manager to be sleeping while on guard duty.
He was dismissed after the board of inquiry found him guilty of the charge.
Before the Industrial Court the claimant contended that at the material
time, he had not been sleeping but had merely closed his eyes as he had
had a headache. In affirming the punishment of dismissal meted out on the
claimant, the court stated that sleeping while on duty had been a serious
misconduct, more so when the offender had been a security guard who had
been responsible for the safety and security of the area he had to guard.

It must be added, that when an employer, after being informed or
becoming aware of the employee’s medical condition, insists that the
employee continues to work, then should the employee subsequently fall
asleep due to his ailment or due to certain medications taken, it should not
be considered a gross misconduct. In Thong Hon Fook v. UPP Pulp & Paper
(M) Sdn Bhd 26 the claimant alleged that his dismissal for sleeping whilst on

[2016] 2 ILR Industrial Law Reports xxxix

duty had been without just cause or excuse. He alleged that at the material
time, he had not been feeling well and had been drowsy after taking the
medication. His claim of being unwell had been supported by another staff
who had confirmed it at the domestic inquiry hearing. In holding the
claimant’s dismissal to be without just cause or excuse, the Industrial
Court held that the claimant’s conduct of coming to work despite not being
well, had been an example of exemplary conduct which by any rules of
natural justice had not warranted his punishment of immediate
termination. The backwages awarded to him however, was reduced to the
extent of 50% for his contributory conduct.

In Muhammad Radhi Abdul Latif v. Malayan Banking Berhad,27 the claimant
was charged and convicted by the domestic inquiry panel for committing
the misconduct of sleeping inside the men’s prayer room on the bank’s
premises, during working hours. In his evidence, the claimant had
admitted to being asleep at the material time as he had not been feeling
well. He alleged that he had visited the clinic in the morning and the
necessary medical slip had been submitted to the company. However,
these material facts had not been pleaded but instead raised for the first
time during the trial. Further, no medical slip or any medical records were
forwarded to the court. It had not even been put to the company’s
witnesses to enable them to respond to this allegation. The Industrial
Court held inter alia, that the above allegations by the claimant had been
a mere afterthought. Lastly, in Anparasu Ramasamy v. Cadbury
Confectionery (M) Sdn Bhd,28 the company had proven that the claimant’s

L A Wdismissal had been lawful as he had been sleeping in the recreation room

after completing his break. The claimant’s contention that he had had
diarrhoea on that day and had gone to the restroom after completing his
break time, had not been substantiated by evidence.

OE Design Sdn Bhd v. Lai Yeu Hoong: A Review

It would be worthwhile to review the High Court’s decision in OE Design
Sdn Bhd v. Lai Yeu Hoong, 29 which had set aside the Industrial Court’s
award in favour of the claimant since the company was unable to prove
that the claimant had in fact been sleeping while on duty. The claimant, a
Production Officer of the company, was dismissed after the domestic
inquiry had found him guilty of sleeping while on duty on the afternoon of
25 September 1996. The said offence was described as a serious
misconduct under the Company’s Disciplinary Rules and Regulations.
Before the Industrial Court, the claimant alleged that he had not been
asleep intentionally but rather had been drowsy due to the side effects of
the cough mixture. He had also contended that he had not requested for

xl Industrial Law Reports [2016] 2 ILR

medical leave from the doctor due to his work commitments. The
Industrial Court, in holding the claimant’s dismissal to be without just
cause or excuse, stated: ‘The claimant’s evidence seems to be consistent.
He was not cross-examined as to whether he visited the doctor on
24 September 1996. He was also not cross-examined as to whether he
took the cough mixture on 25 September 1996 between 3 am or 4 am and
whether the cough mixture caused drowsiness.’

In the judicial review application, the applicant company contended inter
alia, that the Industrial Court had erred in law for failing to undertake a
meticulous examination of its evidence.30 It further contended that the
Industrial Court had failed to consider the evidence of COW1, COW2 and
COW4 who had given a consistent story namely, that the claimant had
been sleeping at the material time. The applicant company further stated
that the learned Chairman had been wrong to conclude that it had failed to
cross-examine the respondent claimant on his visit to the doctor on
24 September 1996. Further, in relation to the proportionality of the
punishment, the applicant company contended that the punishment
imposed on the respondent claimant had been fair given the fact that he
had had a previous record of sleeping on the job and had been issued a
warning after giving due weight to his previous good record of service with
it. Hence, it argued that the respondent claimant’s dismissal had been with
just cause and excuse and that the punishment meted out had been
proportionate to the severity of the alleged misconduct.

L A WZaleha Zahari J (as Her Ladyship then was) in this case, noted inter alia,

that the Industrial Court Chairman had failed to investigate and give a
critical appreciation of the totality of the evidence before her. In
particular, the trial judge stated:

The word ‘sleeping’ is defined in the Shorter Oxford English Dictionary
Third Edition as: ‘1. The unconscious state or condition regularly and
naturally assumed by man during which the activity of the nervous system
is almost entirely suspended, and recuperation of its powers takes place;
slumber, repose”. 2. A period or occasion of slumber. 3. A state of
inactivity or sluggishness (in persons or things).’ When the above definition
is applied to the evidence given by COW1, COW2 and COW3’s testimony
read as a whole, the overall effect of their evidence is clearly that the
Respondent was indolent and in a state of inactivity at the material point
of time and therefore could be considered to be sleeping at that point of
time.

The trial judge further noted that since the learned chairman had failed to
state a rational basis for his conclusions, the findings of the Industrial
Court had suffered from a serious error. In particular, the learned Judge
stated:

[2016] 2 ILR Industrial Law Reports xli

The failure to state his reasons is clearly indicative of his failure to take into
consideration the weight to be attached to the evidence before him and to
consider the probabilities of the case which should have influenced the
mental process in arriving at the ultimate finding ... the findings of the
Industrial Court suffers from a serious error and is clearly against the weight
of the evidence. In any event this court can interfere with the drawing of
inferences from the evidence if they are not legally sound.

It must be noted that transparency requires the learned Chairmen to give
reasons for their decisions. This is a manifestation of the fundamental
principle of the common law that justice must not only be done but must
manifestly be seen to be done.

On the issue of the appropriateness of the sentence imposed, the trial
Judge held that the applicant company had been entitled to impose
dismissal for sleeping while on duty since the punishment for such
misconduct had expressly been incorporated in its Regulations. “[T]he
misconduct of sleeping on the job goes against the essential conditions of
his contract of service which requires an employee to be diligent and
responsible. Sleeping on the job is clearly inconsistent with the
respondent’s duty towards his employer. The misconduct of a person such
as the respondent in this case, who is in a supervisory role such that he
does not command the confidence of his superior officer nor of his junior
officer, does warrant dismissal. The Applicant could not reasonably have
been expected to continue to employ an employee who has been found to
have been sleeping on the job.”

L A WAs can be seen from the foregoing, it is important for the Industrial Court

to meticulously examine the evidence presented before it, to determine
whether the claimant had in fact been sleeping while on duty, and if so,
whether the punishment imposed by the employer had been proportionate
in the given circumstances. The evidence to prove sleeping on the job
must be convincing and not be a bare allegation, for example, there must
be photographs or a short video tendered which clearly shows that the
claimant had been sleeping while on duty. What is certain is that whether
or not falling asleep at work warrants dismissal, has to be decided after
considering all the facts and circumstances presented in a particular case.

Conclusion

To wrap up the determination of the awards above, an employee must be
awake at all times while on duty. Sleeping while on duty or sleeping on the
job during working hours, whether intentional or otherwise, is a workplace
misconduct as it compromises the employer’s duty to ensure safety at the

xlii Industrial Law Reports [2016] 2 ILR

workplace. Besides projecting an unprofessional appearance, the

employee is considered not performing the work for which he is being

paid. Whether or not sleeping while on duty constitutes a gross

misconduct, will be dependent on the nature of the claimant’s job. In some

occupations, it is deemed a minor misconduct in which a written warning

would be sufficient and any further incidents of this nature would result in

additional disciplinary action being taken, up to and including the

termination of employment. Whilst in other jobs, for example, those of

pilots, air traffic controllers, security guards, lifeguards or those operating

heavy machinery, sleeping while on duty is considered a gross

misconduct. An employee’s carelessness or a neglect of his or her duties

on the job could result in the loss, damage or destruction of the company’s

assets or even injury to the other employees or employer’s customers.

Since, an employer is vicariously liable for damage or injury caused,

arising from an employee’s carelessness or recklessness, sleeping while on

duty or sleeping on the job should not be tolerated. The fact that the

employee failed to get sufficient sleep the night before or is suffering from

severe headaches, would not be an adequate excuse. It is the duty of the

employee to inform the employer of his or her inability to continue with

his or her duties due to any medical ailment. The same applies when the

employee takes certain sleep inducing medication or medication which

could cause drowsiness, for example, after taking some cough mixture.

Failure to inform the employer of his or her medical ailment would likely

result in the employee, should he or she be found sleeping while on duty,

being subjected to disciplinary action including but not limited to the

L Atermination of his or her services. W
Endnotes:

1 See Wilson & Clyde Coal Co Ltd v. English [1938] AC 57.

2 Ibid., at p. 368.

3 See Kuala Lumpur Glass Manufactures Co Sdn Bhd v. Hamzah Gemok [1988] 2
ILR 155 (Award No. 204 of 1988). See also Zan Izumi Md Zainal lwn. Smart
Print & Stationer Sdn Bhd [2013] 2 LNS 0364 (Award No. 364 of 2013); Intra
Marine (PK) Sdn Bhd v. Thomas Pappu [1995] 1 ILR 654 (Award No. 183 of
1995); Kumpulan Tebong Sdn Bhd, Malacca v. Sivashanmugam V Hanggaraja,
Malacca [1985] 1 ILR 478 (Award No. 13 of 1985); General Ceramics
Manufacturers Sdn Bhd v. Kesatuan Pekerja-Pekerja Perkilangan Keluaran Galian
Bukan Logam [1984] 1 ILR 231 (Award No. 13 of 1984); Malaysia Smelting
Corp Sdn Bhd v. Gerald Ambrose Stothard [1988] 1 ILR 246 (Award No. 78 of
1988); Persolekan Uniseks Salon Kimma v. Yong Soon Meng [2004] 1 ILR 924
(Award No. 158 of 2004).

[2016] 2 ILR Industrial Law Reports xliii

4 See for example, Abdul Rahim Mohd Mydin v. Amphenol TCS (M) Sdn Bhd
[2016] 1 ILR 1 (Award No. 1036 of 2015).

5 [2015] 2 LNS 0967 (Award No. 967 of 2015).
6 [2015] 2 LNS 0655 (Award No. 655 of 2015).
7 [2014] 2 LNS 1069 (Award No. 1069 of 2015).
8 See Thong Hon Fook v. UPP Pulp & Paper (M) Sdn Bhd [2014] 2 LNS 1336

(Award No. 1336 of 2014).
9 [1983] 1 ILR 188 (Award No. 43 of 1983).
10 [2001] 3 ILR 766 (Award No. 962 of 2001).
11 [2015] 2 LNS 1012 (Award No. 1012 of 2015).
12 [2009] 2 LNS 0411 (Award No. 411 of 2009).
13 See Muniama Rangasami v. Flextronics Technology (Malaysia) Sdn Bhd [2014] 2

LNS 1056 (Award No. 1056 of 2014).
14 See Straits Trading Company v. Kesatuan Kebangsaan Pekerja-Pekerja Perusahaan

Pelesenan Logam (Award No. 10 of 1969).
15 [2009] 2 LNS 0359 (Award No. 359 of 2009).
16 [2012] 2 LNS 0354 (Award No. 354 of 2012).

L A W17 [2000] 1 ILR 503 (Award No. 127 of 2000).

18 [2014] 2 LNS 1056 (Award No. 1056 of 2014).
19 [2009] 2 LNS 1395 (Award No. 1395 of 2009).
20 [2012] 1 LNS 1335 (HC); [2012] 1 ILR 509 (IC).
21 See Sahlan Sakial lwn. Dan Kaffe (Malaysia) Sdn Bhd [2012] 1 ILR 509 (Award

No. 61 of 2012).
22 [1999] 3 ILR 557 (Award No. 710 of 1999).
23 [1994] 1 ILR 368 (Award No. 140 of 1994).
24 [1999] 1 ILR 912 (Award No. 263 of 1999).
25 [1988] 2 ILR 155 (Award No. 204 of 1988).
26 [2014] 2 LNS 1336 (Award No. 1336 of 2014).

xliv Industrial Law Reports [2016] 2 ILR

27 [2009] 2 LNS 1246 (Award No. 1246 of 2009).
28 [2009] 2 LNS 1384 (Award No. 1384 of 2009).
29 See OE Design Sdn Bhd v. Lai Yeu Hoong [1999] 1 ILR 912.
30 [2001] MLJU 69

LAW


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