THE topic of sleeping at work came under the judicial spotlight after two Bidvest Protea Coin tactical officers were fired, but the CCMA ruled earlier that they should be reinstated.

Bidvest turned to the Johannesburg Labour Court to have the CCMA’s ruling overturned.

The commissioner earlier found that the company applied discipline inconsistently, to the extent that the dismissal of Sphamandla Mlungwana and Hans Moetlo was deemed substantively unfair.

One of the main arguments before the CCMA and now the Labour Court was that the pair argued they were treated unfairly compared to others who slept on the job but were not dismissed.

Bidvest’s argument on this point was that the other culprits fell asleep and did not purposely “go to sleep”.

Mlungwana and Moetlo, who were tactical officers, opposed Bidvest’s application to have the CCMA ruling overturned with the assistance of their union.

Mlungwana and Moetlo did not deny that they slept while on duty on the day in question. Their case is that, in being dismissed on a first offence, they were treated differently from other employees who slept on duty for the first time.

The South African Transport and Allied Workers’ Union (SATAWU), on behalf of the pair, earlier provided the CCMA with eight examples where other workers fell asleep but were not fired. They mostly only received a final warning.

But Bidvest held that Mlungwana and Moetlo did not merely fall asleep accidentally as previous employees had done, but that they had both taken a decision to leave their posts to take a nap.

The court was told that Mlungwana and Moetlo decided to leave their post at Eastgate Mall to take a nap “in a safe place”. They left their post and drove to Bidvest’s Kelvin office, where they parked the car in a “dark, secluded spot”.

They were found after sleeping for about two hours.

Acting Judge B Ramji overturned the decision by the commissioner who found that the pair’s dismissal was unfair.

The judge referred the matter back to the CCMA, to be determined by a different commissioner, as this commissioner did not consider all the facts.

This includes that Bidvest said it has video footage of Mlungwana and Moetlo illustrating the circumstances under which they slept and why these were different from those of the other employees who slept on duty but who were not dismissed.

zelda.venter@inl.co.za