More people are now considering working two jobs to help meet the high cost of living. However, working a second job can affect your ability to satisfactorily perform your duties at your primary job which may be concerning for your employer.
Employee well-being is a necessity. The Work Health and Safety Acts in each Australian jurisdiction demands that employees take reasonable steps to take care of their own health and safety, and for employers to ensure that they are not placing undue stress on the welfare of their employees by expecting them to work excessive hours. This means that if an employer becomes suspicious of a worker’s capacity to work safely, they must take reasonable steps to deal with the risks.
Possibility of Workplace Fatigue arising from two jobs
Under the National Employment Standards (NES) provided under the Fair Work Act 2009 (Cth), an employer must not request an employee to work more than 38 hours in a week, unless there are reasonable circumstances warranting additional work. A 38-hour working week is accepted for it is said to achieve balance for employees, maintains one’s fitness for work, and, arguably reduces the likelihood of mental-health issues arising.
The case of G v Waverly Council (No 2)  NSWIRComm 1020, concerned a council employee who had sustained a wrist injury. The employee was working as a cleaner for the council whilst simultaneously working full time at Woolworths. The Council became aware that the employee had systematically been working 78 hour weeks. As such, they requested the employee to fill out of a secondary employment form which was a valid request pursuant to s353 of the Local Government Act 1993. The Council also invited the employee to a meeting to discuss their concerns. At this said meeting, the employee did not disclose any information regarding his employment with Woolworths and stated that he did not believe his sleeping patterns and health had not been compromised. Under the respective award, the Local Government (State) Award 2014, the employee was subject to 12 hour working days. As a result of the cleaner’s injury, as well as the cloud over the employee’s position at Woolworths, the council requested the employee to undergo a functional assessment of his injury to show that he qualified as being “fit for work” with the Council. Until such an assessment took place, the Council reduced his duties as a cleaner. The employee consented to undertaking an assessment, which subsequently identified that due to lowered amount of sleep directly arising because of two jobs, there was real risk of re-injury which had the potential to be detrimental to both the employee’s safety and to those around him. After numerous requests for the cleaner to give information on his second employment at Woolworths, and a pattern of failing to comply with those directions, the Council dismissed him.
At the Commission hearing, the cleaner claimed that his dismissal was unfair. The Commission, however, took the view that the Council had clearly requested information about the cleaner’s employment outside the council on a few separate occasions as they were concerned about his well-being. The employees continued failure to disclose and act in accordance with the mandatory show-cause process, was substantive enough for the Council to warrant the termination.
Similarly, in a more recent case, Jacob v West Australian Newspapers Ltd  FWC 5382, Mr Jacob was an employee of West Australian Newspapers, and had taken up a second job working for ride-sharing company, Uber. Pursuant to a clause under Mr Jacob’s employment contract with West Australian Newspapers working elsewhere was only permitted if he sought permission first. As rumours began to circulate that Mr Jacob had a second job, supplemented with more personal leave days taken and a downfall in recent performance, Mr Jacob was asked to lodge a formal request with West Australian Newspapers to a grant permission for him to work for Uber. Mr Jacob did not comply with the request, thus West Australian Newspapers dismissed Mr Jacob on the basis he had been presented with opportunities to respond, and to be open about his second job but he had intentionally not complied. The dismissal was held to be valid for West Australian Newspapers had been reasonable in their requests, had provided Mr Jacob with a number of chances to disclose his employment with Uber, and he had intentionally not complied with formal directions.
Conflict of Interest
Another important consideration prior to engaging in a second job is to ensure that there is no chance of a conflict of interest arising. The chances of this enhanced if the second job is within the same type of work or industry as the employee’s primary job. It is important to note that if there is a conflict of interest, your employer may have grounds to terminate your employment if your employment contract explicitly provides a conflict of interest clause. Alternatively, your employer may be able to argue that by working elsewhere, you have breached the implied duty of good faith which is essentially a view that employers and employees should act fairly and honestly.
Express Restraint Clause
Employers may be able to prohibit employees, from engaging in a second job, by providing an express restraint clause in their employment contracts. Generally, this clause must be drafted reasonably for the courts to hold it enforceable, for it would otherwise generally be void for it would be against public policy. In Bradford Pedley v IPMS Pty Ltd T/A Peckvonhartel  FWC 4282 (PVH), Mr Pedley owned his own business which was essentially a side job to working for PVH. Pursuant to his employment contract, Mr Pedley was expressly prohibited from using his cliental basis acquired in his primary job in his side business, however he had sent an email to clients of PVH regarding his side job. Consequently, his employment with PVH was terminated by his employer on a breach of the express terms of the contract.
Ultimately, employers should not unduly prohibit employees from taking on supplementary work given that some employees simply cannot live on one income. Thus, to mitigate the risks, employers should invite their employees to be open and frank about taking on a second job and implement strategies to ensure that employees are not putting their own health and safety at risk, or putting other employees in harm’s way. It is important to regularly train employees on their duties pursuant to the Work Health and Safety Acts of their respective jurisdiction, how it necessitates an obligation on employees to take responsibility for their fitness for work and mandates that employees comply with any instructions that are related to their fitness for work.
If you think one of your staff members are, or are considering, working a second job and you have concerns, call Cube Workplace Solutions on 1300 122 823 to discuss the appropriate course of action with a member of our experienced team.