PART 1.2

Sonya was employed by a company which owned a block of social housing apartments. Many of the residents were elderly and vulnerable because of ongoing health issues. She had been employed as a night porter for eight years. She was dismissed for sleeping on the job following a formal disciplinary meeting. Sonya claims her dismissal was unjustifiable and seeks financial remedies. The employer denies Sonyas dismissal was unjustifiable and says her actions compromised the security, health, and safety of its tenants. For that reason, it considered her actions amounted to serious misconduct.

The events giving rise to the dismissal are as follows:

Sonya 's employment as the night porter was for four nights a week, starting at 11pm and finishing at 7am the following day. She was the only person on duty after other staff left the building at midnight. On one evening after she completed her regular jobs, Sonyas back was very stiff and sore and she was not feeling very well. Her back had been playing up for about a week, and she had told her supervisor that she was taking medication for ongoing pain. She sat down for a brief period to take the weight off her feet and to relieve her back. Although she does not recall it, she went to sleep for two hours from 3.30am to 5.30am. This was verified by CCTV2 security cameras which operated 24/7. Sonya then continued with her duties until 7am.

Later that morning, one of the senior managers reviewed the security camera footage and emailed the general manager, asking that he follow up on Sonya actions, stating that it was unacceptable and incompetent on her part.

Two days later, when Sonya was on duty again, this time during the day, she was called to the general managers office. She was told she had been caught sleeping and he wanted an apology. She was surprised by the accusation and by the general managers intimidating manner, and explained that on that night she was not feeling well because of back pain. He told her that he was giving her an official warning. The meeting ended at this point and Sonya continued with her duties.

The next day she received a letter inviting her to a disciplinary meeting. The letter advised her of the allegations that she had been sleeping on the job on the morning in question, and that the security of the apartment block had been compromised. She was told that she was welcome to have a representative present at the meeting and was informed her the matters were serious and termination of her employment was being considered.

The disciplinary meeting took place, with her supervisor, the general manager and Sonya who stated she did not want a representative to assist her at the meeting. She agreed that she had been sleeping, explaining that she had been on medication for back pain and was unwell on the night. Her supervisor did not refer to the conversation with Sonya regarding her medication for back pain.

It was confirmed that she had been found sleeping at another time, one year earlier. At that time, Sonya had mentioned to her supervisor that her back was causing pain, but no action had been taken to respond to this information.

Sonya explained that she had been taking medication for back pain for some time and agreed with a suggestion made by the general manager that this probably caused her to be drowsy. The supervisor did not refer to this earlier conversation and said nothing at the meeting. After a short adjournment, she was informed by the general manager that she was being dismissed for serious misconduct. Sonya is now claiming her dismissal is unjustified, while her employer stands by its decision that sleeping on the job amounted to serious misconduct.

Required: 1 Outline the legal elements of the following: Serious misconduct Justifiable and unjustifiable dismissal

2 Identify the procedural fairness requirements that are imposed on an employer when seeking to take disciplinary action against an employee.

3 Do Sonyas actions amount to serious misconduct, and is the employer justified in dismissing her? Give reasons.