Prison officer dozed on duty because of sleep apnoea he didn't know about

What happened

Paul Weaver started with Queensland Corrective Services in March 2014 as a custodial correctional officer. Within a few years he was acting as a correctional supervisor, sat on the workplace health and safety committee and trained other officers. His general manager later described him as "an exceptional officer".

In October 2018 and January 2019 he worked three 12-hour overtime shifts doing constant observation of prisoners who had been self-harming, two at a hospital secure unit and one at a prison health centre. Colleagues reported that he appeared to be falling asleep in his chair. The CCTV footage, he accepted, showed he was "more than likely asleep or dozing for brief moments".

What nobody knew at the time, including Mr Weaver, was that he had severe obstructive sleep apnoea, a condition that interrupts breathing during sleep and leaves a person deprived of good-quality rest. It was diagnosed in July 2019. He then lost 12 kilograms, bought a CPAP machine for $1,850 and got a medical certificate saying he was fit for his normal duties. His general manager had already returned him to full prisoner-contact duties in June 2019, and he worked them for months without incident.

The investigation and the dismissal

An internal investigation found the three allegations substantiated. In February 2020, more than a year after the last shift, he was suspended on paid leave and asked to show cause. The department found he had been "derelict in the performance of your duties" and guilty of misconduct under s 187 of the Public Service Act 2008 (Qld). His employment was terminated on 5 August 2020, and he applied to the Queensland Industrial Relations Commission for reinstatement.

Why: the legal test

Under s 316 of the Industrial Relations Act 2016 (Qld), a dismissal is unfair if it is harsh, unjust or unreasonable, the same words used in the federal Fair Work Act 2009 (Cth). As the High Court has explained, a dismissal can be unjust because the worker did not do the misconduct alleged, unreasonable because it rests on inferences the evidence could not support, and harsh because its effect on the worker is out of proportion to what happened. Section 320 also asks whether the worker was told the reason and given a chance to respond.

The key question was what misconduct means. Earlier decisions described it as a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the trust placed in a public servant. Mere incompetence, error or innocent mistake is not enough. "Dereliction of duty" likewise carries "notions of blameworthy conduct".

What the Commission decided

Industrial Commissioner McLennan accepted that Mr Weaver had brief microsleeps on all three shifts. But the Commissioner found he did not intend to sleep, did not know he had been asleep and did not know he was prone to it. The footage showed him reading, talking, drinking tea and standing up to stay alert, and on one shift he was the officer who raised the alarm when the prisoner fell. A sleep physician explained that his low score on a standard sleepiness questionnaire meant he would not have felt sleepy. Without blameworthy conduct, there was no misconduct and no dereliction of duty.

The process was also flawed. Evidence the decision-makers relied on, including a co-worker's account of a remark said to have been made by his wife, was not put to Mr Weaver in the show cause notice before the findings were made. That co-worker's report was accepted without the decision-makers checking it against the full footage, which contradicted it in several respects. His wife was never interviewed, and the investigation was long delayed.

The penalty itself raised questions. A Deputy Commissioner had reviewed the same file and decided on a formal warning letter. The file then went to an Assistant Commissioner who decided on dismissal. The Commissioner found no new information explained the change, and concluded that his view of Mr Weaver had been "infected" by an unrelated 2017 incident that had already been dealt with by a reprimand.

Finally, dismissing an older worker who supported three teenage stepdaughters, in the middle of the COVID-19 pandemic, for conduct that was involuntary was harsh. The Commission found the dismissal harsh, unjust and unreasonable.

How it ended

The department said it had lost trust in him. The Commission disagreed: he had worked full duties for months before his suspension, he was medically fit, and the officers who gave evidence said they would work with him again, provided his condition was managed. It ordered him reinstated to his former position with continuity of employment, and ordered the department to pay the wages he had lost since August 2020, less what he had earned elsewhere in the meantime and any notice pay he had received.

What this means for you

This case shows that when someone falls asleep at work, the question is why. Where an undiagnosed medical condition is the cause and the worker did not know about it, the conduct may not be misconduct at all.

If you are facing allegations, it is worth getting medical advice early if a health issue may explain what happened, and putting that evidence to your employer. This was a Queensland decision, but the Fair Work Act uses the same harsh, unjust or unreasonable test, and the WA state system asks whether a dismissal was harsh, oppressive or unfair. Time limits are short: 21 days for a Fair Work dismissal claim and 28 days in the WA state system.