Dismissal for sleeping on the job and refusing to engage in subsequent investigation upheld

Current site :    AU   |   EN
China Hong Kong SAR
United Kingdom
United States

The Fair Work Commission has uphold a dismissal where an employee repeatedly refused to respond to serious allegations despite being reasonably directed to do so.

Key impacts

  • Employers should always ensure procedural fairness is afforded to an employee including providing reasonable opportunities for an employee to respond to allegations before terminating employment, whether or not the employee is acting reasonably
  • Employers should ensure the steps in a disciplinary process meet the requirements of any applicable enterprise agreement, to avoid procedural flaws in subsequent disciplinary action taken, including advising an employee of any right to representation
  • An employer's legal requirement to protect its employees may reasonably extend to refusing the attendance of a particular chosen employee representative.


Susan Anson (Anson), a nurse, was allegedly discovered asleep while on duty by her nurse unit manager. At the time, Anson was responsible for 10 residents of the Western District Health Service (WDHS) facility and 7 acute care patients.

WDHS investigated the incident and invited, then directed, Anson to provide her account of the alleged incident on multiple occasions over several months. She was also repeatedly advised of her right to a representative.  Anson did not respond, and refused to attend meetings for various reasons, including insisting on the attendance of a particular Health Services Union (Union) representative, Tracey Brown (Brown). 

Over a period of 2 months, WDHS initially attempted to engage with Brown, who failed to respond to multiple requests about proposed meeting dates, and abruptly cancelled arranged meetings. WDHS later refused to allow Brown to represent Anson on the basis that Brown's involvement posed an occupational health and safety risk given her alleged history of aggressive and bullying behaviour towards its employees.

Three weeks later, WDHS advised Anson that refusing to attend a disciplinary meeting could amount to serious misconduct under the relevant enterprise agreement (EA), resulting in disciplinary action which could include summary dismissal.  Anson failed to comply and was dismissed a week later for being asleep on duty and refusing to respond to the allegations against her, breaching lawful and reasonable directions to do so.


The Commission found that Anson breached her duties as a nurse by being asleep while on duty, amounting to a valid reason for termination of employment.

Anson alleged that she was both entitled to and denied her choice of representative. In finding WDHS did not fail to allow or unreasonably refuse Anson a representative in a disciplinary meeting, the Commission noted the relevant EA did not expressly require WDHS to provide an employee with the union representative of their choice. The Commission agreed that it was reasonable for WDHS to refuse to allow Brown to represent Anson given her behaviour posed a risk to staff welfare and other union representatives were available.

The Commission concluded that Anson was provided a "fair go all round" and upheld the dismissal.

On 2 August 2022, the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 was passed (Aged Care Bill), introducing important regulatory changes to Australia’s aged care sector. The Bill makes numerous legislative amendments, including to the Aged Care Act 1997 (Cth) (Aged Care Act) and the Aged Care (Transitional Provisions) Act 1997 (Cth) (Transitional Provisions Act), and responds to various recommendations made by the Royal Commission into Aged Care Quality and Safety (Royal Commission) Final Report (Report). The Report identified the provision of substandard aged care services and perceived systemic failures in the aged care sector.[1]

08 August 2022

The Federal Court has refused an application to stay proceedings to quantify compensation for patent infringement (quantum proceedings) pending the outcome of separate parallel proceedings challenging the validity of the infringed patent on new grounds. The case is significant as intellectual property cases are regularly bifurcated with liability determined separately damages or an account of profits. A patentee may also bring consecutive infringement cases and therefore have two separate cases considering invalidity issues for the same patent running in parallel.

03 August 2022

Since the introduction of a nationwide Marketing Authorization Holder (MAH) system in 2019, licenses have linked directly to therapeutic products rather than manufacturers.

03 August 2022