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20 December 2014
   
 
 
 
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Employers often laugh at the expense of employees who have amazing explanations for their misconduct. The stories of employees who sleep on duty are not the exception, but at least one commissioner believed an employee’s story that he was not sleeping on duty, but in fact praying.

In CEPPWAWU obo Ramoroka / Camserve Systems (Pty) Ltd [2008] 7 BALR 593 (NBCCI) the facts were as follows:  when the technical manager visited the employer’s control room to fix a computer problem, he found the employee sitting in a chair with his head on his chest.

He knocked on the table and tapped the employee on the shoulder as well as his safety helmet, but the employee did not respond. Only after the manager hit the employee on his helmet did he put his head up.

According to the manager the employee struggled to focus and when he was asked whether he should be sleeping on duty, he left the room and said he was “very sorry”. When the technical manager met the employee later that day the employee had an explanation for his behaviour:  he was engrossed in “deep prayer”.

The employee testified that he had taken his tea break in order to pray.  He heard the technical manager enter the room, but did not acknowledge him as he had to complete his prayer, which according to him was a “big thing with God”. As to the way in which members of his church normally pray, the employee stated that it was a “church secret”.

The commissioner concluded that:

“I need to state that I did not experience the evidence of either of the parties to be unreliable or implausible. All concerned delivered clear and concise testimony and the credibility of none was damaged when under cross-examination. What is left is whether or not I should draw inferences on issues that are not individually decisive. For example, was it reasonable for the applicant to be praying at 9am in the morning? The converse would also be relevant; was it reasonable for him to be asleep? Further, was it reasonable for him not to acknowledge Mr Wilkinson if he was, indeed, praying, and can I infer from his lack of acknowledgement that he was, in fact sound asleep? Should I infer from the applicant’s ostensible choice of prayer venue that his testimony is a fabrication?

I am not prepared to draw inferences in favour of any party from the abovementioned. To do this in the absence of credible supporting evidence would amount to little more than speculation – the proverbial tossing of the coin.

I am therefore in the unenviable position which arbitrators endeavour to avoid if at all possible, namely being confronted with two versions of events that, on the evidence presented, are both equally probable, but mutually destructive (the acceptance of any one version signalling prejudice to the case of the other).

In the premises and faced with two equally probable versions of events, I am unable to conclude, on a balance of probabilities, that that applicant had been sleeping on duty...  As such, and in terms of my terms of reference, his dismissal was substantively unfair.”

Does this case mean that sleeping on duty is a form of misconduct, but praying on duty not?  How are employers to deal with this situation?

Employees should be made aware of the fact that they are paid to work when they are on duty. No activity other than work will be tolerated during working hours, whether it be sleeping, meditating, praying, eating or making/receiving private phone calls.  This should be reflected in the employer’s disciplinary code, the one document that employers often neglect to implement. An employee who is caught sleeping on duty, should then be charged with sleeping or alternatively, praying on duty.

If employees are not allowed to sleep on duty, surely one cannot expect employers to allow them to pray on duty?  And depending on the position of the employee, praying on duty could be a dismissible offense.  Employees who need time off to pray, should inform their employers about their religious (or cultural) beliefs in order to enable the employer to reasonably accommodate them.

Written by Advocate Nicolene Erasmus
First published on the SA Labour Guide website

Edited by: Creamer Media Reporter
 
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