Employees getting second jobs. As Employment Lawyers we have been asked to advise on this issue which has now come before the Fair Work Commission.
In order to adjust to COVID-19, many employers have required employees to work reduced hours. Positions which have previously been full-time have been varied to part-time, or even casual. Some businesses are also still receiving Jobkeeper payments, allowing the employer to issue stand down directions.
The reduced hours of work carry financial consequences for employees, given the corresponding reduction in income. They may wish to find secondary employment to support themselves.
We have recently reviewed a decision (the Decision) of the Fair Work Commission (the Commission) which involved an employee seeking secondary employment.
What happened in the Decision?
The employee was engaged by the employer as a nanny, looking after the children of the owners of the employer’s business. There was a reduction in the employee’s working hours attributable to COVID-19. The employer applied for Jobkeeper payments on behalf of its employees and was successful. The employee subsequently started receiving Jobkeeper payments, although her hours of work had been reduced. She entered into discussions with her employer as to the possibility of secondary employment.
The employer was supportive of the employee sourcing secondary employment. The employee suggested that working for four (4) days each week for the employer prevented her from securing secondary employment.
Whilst they were supportive, the employer made it clear it was ‘critical’ the employee was available to work between Monday to Wednesday. The employee was permitted to secure alternate employment on Thursdays and Fridays.
The employee subsequently advised she had been offered alternate employment on Monday and Tuesdays and accepted the opportunities.
The employer dismissed the employee for failing to comply with their direction to be available between Monday to Wednesday.
The employee commenced an unfair dismissal application.
What view did the Fair Work Commission take?
The Commission took a dim view of the employee’s conduct.
Notwithstanding the receipt of Jobkeeper payments and reduction in working hours and remuneration, the Commission held the employee did not have “a right to unilaterally determine the times at which she would work for the employer”.
Whilst there was some sympathy from the Commission in relation to the employee’s financial circumstances, the Commission clarified Jobkeeper does not provide an employee to “act with immunity from obligation to the employer to perform work in accordance with its reasonable requirements”.
The clear position of the employer that the employee was not permitted to engage in secondary employment between Monday to Friday was clearly understood by the employee. It was a reasonable and lawful direction.
The employee’s act of informing the employer that she accepted alternate employment, in breach of the reasonable and lawful direction, was viewed by the Commission as a “regrettable and cavalier indifference”.
The comments made by the Commission in the Decision provide clarity to employers. Just because an employee is on Jobkeeper does not excuse an employee’s obligation to comply with reasonable and lawful directions.
The financial circumstances of an employee may be relevant in considering whether a dismissal was harsh, but financial circumstances do not excuse an employee’s obligation to comply with their employer’s requirements. The employment contract and its obligations continue to apply to an employee.
Our top three (3) lessons for employers
Tip 1 – Address secondary employment in the employment contract
- Employers should made it clear, in writing, whether an employee is permitted to undertake other employment within an employment contract; and
- If an employee is permitted to undertake other employment (such as a casual employee), employers should ensure the employment contract contains an obligation to avoid a conflict of interest (such as refraining from working for a competitor).
Tip 2 – Putting reasonable and lawful directions in writing
- Avoid issuing directions to employees verbally; and
- Put any reasonable and lawful directions in writing to the employee to demonstrate their knowledge of the business’ requirements.
Tip 3 – Avoid unintended consequences of secondary employment
- Ensure the employee is under contractual obligations to keep the business’ information confidential. Do not allow them to share confidential information with another employer.
- Clearly specify any company equipment (such as a laptop or phone) must only be used in the performance of duties with the business. They should not be used to perform duties for another employer.
- This may be more difficult with contractors however this can be covered by way of a contractor agreement or/and a confidentiality agreement.
As the lawyers for employers, we can provide employers with advice in circumstances where an employer is undertaking other employment or conducting their own business, contrary to their contractual obligations. Should you require any assistance please contact us to arrange an obligation free consultation on +61 (07) 3876 5111to arrange a time to speak with one of our lawyers for an obligation free consultation.
About the Authors
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law at NB Lawyers – Lawyers for Employers who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
Dan Chen is a lawyer at NB Lawyers – Lawyers for Employers, and specialises in employment law. Dan is passionate about assisting business owners, small and large understand their obligations under Australia’s complex workplace relations system
 Kerry Lee Willis v One Fine Collective (Aust) Pty Ltd  FWC 6418.