Can my employer terminate me for working a second job?

It has become increasingly common for employees to hold two jobs at once. If you are employed by more than one organisation, you should be aware of certain circumstances where holding a second job may give rise to grounds for termination.

Express Restraint

The terms and conditions of your contract of employment may prohibit you from engaging in secondary employment. If so, engaging in secondary employment may constitute a breach of your employment conditions, placing you at risk of termination.

In the case of Bradford Pedley v IPMS Pty Ltd T/A pecvonhartel [2013] FWC 4282, Mr Pedley, an employee of an architecture company, was terminated from his employment despite disclosing his interest in continuing private design work. 

During his employment, Mr Pedley attempted to solicit clients of his employer’s business through a LinkedIn email. The Fair Work Commission accepted that in sending the email, Mr Pendley breached Clauses 2.8 and 2.11 of his employment contract, which provided that he must not: “undertake any appointment or position (including directorship) or work or advise or provide services to, or be engaged, or associated with any business or activity that results in the business or activity competing with us; adversely affects us or our reputation, or hinders the performance of your duties” and that he must “at all times act honestly and in a manner consistent with [his] employment”. 

In the circumstances, the Fair Work Commission concluded that Mr Pendley’s employer had clear justification to lose confidence that Mr Pendley would promote their interests. Therefore, the employer had a valid reason to dismiss him.

Workplace Health and Safety

As an employee, you have certain obligations under the Occupational Health and Safety Act 2004 (Vic). This includes, taking reasonable care for the health and safety of yourself and of others who may be affected by your actions or omissions in the workplace, and also co-operating with your employer to manage the safety of the workplace.

Therefore, if your secondary employment impacts your health and safety such that you are unable to complete your duties safely, your employer may have a valid reason to terminate you. 

The case of Grafton v Waverley Council (No. 2) [2017] NSWIRComm 1020 can be used to provide an example of this. In this case, Mr Grafton worked as a full-time Team Member with Waverley Council (the Council) as well as full-time Nightfiller/Shop Assistant with Woolworths. The Council only became aware of Mr Grafton’s secondary employment when he made a workers’ compensation claim after sustaining an injury at work.

The Council directed Mr Grafton to reduce his working hours to mitigate the risk of fatigue from working two jobs. Mr Grafton, however, refused to make any changes. He also refused to allow the Council contact Woolworths and answer questions regarding his working commitments with Woolworths. Accordingly, the Council terminated Mr Grafton’s employment for serious misconduct due to his unresponsiveness and ongoing failure to comply with their lawful and reasonable directions.

The Fair Work Commission found that the dismissal was not harsh, unjust or unfair. The Commissioner noted that the Council owed an obligation to ensure, so far as is reasonably practicable, the health of safety of Mr Grafton, his fellow workers and the general public. The nature of Mr Grafton’s two working commitments presented obvious potential fatigue concerns. Accordingly, in the circumstances and Mr Grafton’s lack of cooperation, the Council had no choice but to terminate his employment. 

Conflict of Interest

In some circumstances, holding a second job may constitute a conflict of interest. A conflict of interest may arise where your secondary employment falls within the same field of business as your primary employment. If so, your employer may have valid concerns about breaches of confidentiality.

Alternatively, by holding a second job, you may breach your implied duty of good faith to your employer. Whether there is a breach will ultimately depend on the facts and circumstances of your case. According to the case of Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66, a breach may be found if:

• you are guilty of some conduct which is incompatible with your duty and the confidential relationship between yourself and your employer; and
• an actual repugnance between your acts and your employment relationship must be found.

In the case of Bril v Rex Australia Ltd [2015] FWC 88, Mr Bril, a transport driver was employed by K & K Glass. During his annual leave, Mr Bril worked as a driver on a casual basis for a customer of K & K Glass. Mr Bril was forced to resign from K & K Glass after his employer discovered that he had been working for their customer. 

The Fair Work Commission found that the forced resignation was harsh, unjust and unreasonable. Notably, the Fair Work Commissioner held that there was no conflict of interest since the customer did not operate in the same field as K & K Glass, and there was no evidence the work that Mr Bril performed for the customer was work he might otherwise have performed for K&K Glass. 

Further, the Fair Work Commission noted that “undertaking secondary employment which does not encroach on the primary employer’s field of business does not contravene the implied contractual term of fidelity and good faith. Nor does the implied term impose any duty upon the employee to disclose secondary employment of this nature”.

The above cases demonstrate that in some circumstances, your employer may have grounds to terminate you for having a second job. Therefore, before you agree to take on a second job, you should: 

• carefully review the terms and conditions of your contract, as well as any company policies to ensure that you are not expressly restricted from taking on additional employment;
• consider if committing to your secondary employment will impact on your health and wellbeing, as well as the health and wellbeing of others in the workplace;
• inform your employer of the nature of your commitments to your secondary employer; and
• consider if your secondary employer operates in the same field of business as your primary employer.