Proctor : May 2017
32 PROCTOR | May 2017 Two good to be true? How a second job can land you in hot water Running a digital application (app) side-business or working a second job, in addition to working a nine-to-five job, is becoming increasingly common. However, workers holding down a second job can in some circumstances impact a primary employer’s business, especially if the worker is fatigued and unable to work safely, or if the job directly competes with the employer’s business. In such situations, workers may find themselves in hot water, with employers potentially having the right to exercise performance management or terminate employment. This article looks at the rights of employers and workers, and the actions that can be taken when a second job may be negatively impacting the primary employment, with reference to important cases handed down by the Fair Work Commission (FWC). Fitness for work – Jacob v WAN In 2016, the FWC held that West Australian Newspapers Ltd (WAN) did not unfairly dismiss Mr Jacob, a night-shift press foreman, who worked a second job as an Uber driver. 1 Mr Jacob’s employment contract with WAN included an express term that he was not to engage in other work without WAN’s permission, but that such permission would not be unreasonably withheld.2 WAN also had a fitness-for-work procedure in place, which required that employees attending work not be adversely affected for any reason, including fatigue.3 After hearing rumours that Mr Jacob may have had a second job, WAN became concerned that this was affecting his fitness for work on night shifts and was a cause behind performance issues and increased personal leave days. WAN started an investigation and requested Mr Jacob to submit a formal request to hold a second job (noting the hours he expected to work as a driver), so WAN could determine if it was reasonable and safe. Mr Jacob failed to submit the request and repeatedly denied he was working as an Uber driver. Following a show-cause process, Mr Jacob was dismissed with pay in lieu of notice. The FWC held that WAN had a valid reason for dismissing Mr Jacob as it had undertaken an investigation and given repeated warnings that he had to be open and honest about his Uber driving, and had been provided repeated opportunities to respond. The dismissal was held not to be harsh, unjust or unreasonable in the circumstances. What are the risks? A worker with two jobs is not necessarily a cause for concern. Many workers, known or unbeknownst to their primary employer, successfully engage in additional work. However, a second job can give rise to genuine problems or risks for businesses and workers, when: • safety is affected because a worker performing safety-critical work is fatigued or distracted • through fatigue or distraction there is a decline in performance or production and/or an increase in absenteeism or tardiness, or • conflicts of interest, breaches of confidentiality and the misuse of physical and intellectual property occur. Can employers ‘control’ workers’ external activities? Courts, commissions and tribunals have historically been reluctant to allow an employer to unnecessarily intrude into a worker’s private life outside of work hours. In Hivac v Park Royal Scientific Instruments Ltd  CH 1694 Lord Green MR said that the law would not look to impose an obligation on workers that would prevent them from making more income during their spare time. With that said, there are some actions that a business can reasonably and legally take in circumstances in which a second job is creating a genuine safety risk or performance issues. Health and safety In circumstances such as those in Jacobs v WAN, when an employer becomes concerned about a worker’s ability to perform their work safely, they have an obligation under work health and safety laws to manage this risk. Under the Work Health and Safety Act 2011 (Qld) (WHS Act) a person conducting a business or undertaking (PCBU) has a duty to ensure, so far as reasonably practicable, that workers and other persons are not exposed to health and safety risks arising from the business or undertaking.5 Safe Work Australia advises that: “The duty on the person conducting the business or undertaking is not removed by a worker’s ... willingness to work extra hours or to come to work when fatigued. The person conducting the business or undertaking should adopt risk management strategies to manage the risks of fatigue in these circumstances”. 6 While a PCBU cannot necessarily or reasonably be expected to control what a worker does in their own time, when at work a PCBU cannot ignore the safety risk a fatigued or distracted worker may pose. The PCBU has an obligation to develop strategies, including policies and procedures, to identify risks and put in place controls to eliminate or minimise the likelihood of harm. Workers also have a duty under the WHS Act to take reasonable care of their own health and safety, and not adversely affect the health and safety of others.7 This includes: • taking responsibility for their own fitness for work and, when affected, advising their employer and not undertaking safety-critical tasks • complying and cooperating with any reasonable instruction, policy or procedure, including those relating to fitness for work. In practice, this means any business concerned about the risks arising from a worker undertaking two jobs can and should: • Implement strategies, such as fitness-for- duty policies and procedures, aimed at identifying and controlling the risk arising from a worker who is fatigued or unfit for work. In circumstances in which fatigue is a likely hazard, such as night-shift work, these policies should include a direct requirement to disclose and/or seek approval to perform other work. • Consult, investigate and take disciplinary action if a worker fails to follow these policies or procedures and/or attends work fatigued or unfit to perform their job.