Australia can be an expensive place to live. Earlier this year, both Sydney and Melbourne made it into the top six least affordable housing markets in the world. Cost of living expenses are increasing.
In that context, it is perhaps unsurprising that employees are increasingly working multiple jobs to make ends meet. While the endeavour is commendable, a number of risks arise from secondary employment.
In this article, we examine a few recent decisions of the NSW Industrial Relations Commission dealing with secondary employment. But first we examine the regulation.
The Government Sector Employment Regulation 2014
Clause 7 provides:
- A Public Service employee is not to undertake any other paid work without the permission of the agency head.
- This clause does not apply to a person who is:
-
- employed in casual employment, or
- working part-time,during the period that the person is not required to perform duties in the Public Service, but only if the performance of those duties is not adversely affected and no conflict of interest arises.
The prohibition is clear, the exception limited to a discrete category of employee and the purpose of the regulation is apparent: to ensure safety, performance and impartiality. Many policies may contain similar expectations.
An employee must assist in managing secondary employment
Mr Phillip Grafton was a full-time employee of Waverley Council. During the day, he worked as a 'Public Place Cleaner'. Unbeknownst to the Council, Mr Grafton also worked full-time hours as a night-filler at Woolworths. Incredibly, he maintained these two full-time jobs for two full years before the Council realised.
It all came crashing down for Mr Grafton when he injured his wrist. Mr Grafton made a workers' compensation claim and the Council became aware of Mr Grafton's second job.
A significant risk of secondary employment is fatigue. Studies have shown that the effects of a lack of sleep are comparable to alcohol consumption. Employers would not allow an employee to attend to work under the influence of alcohol.
Wary of its own obligations, Council asked Mr Grafton to attend a fatigue specialist to determine whether his body could sustain his work schedule. If the specialist agreed that Mr Grafton's work hours were sustainable, the Council said it would consent to an application for secondary employment. Mr Grafton did not agree to attend. So, the Council terminated Mr Grafton's employment.
The Commission found that the dismissal was not harsh, unreasonable or unjust: Grafton v Waverley Council (No.2) [2017] NSWIRComm 1020. Mr Grafton's excessive work hours were not only a threat to himself, but potentially to others. For the safety of all involved, the Council had to deal with that threat and Mr Grafton would not co-operate.
A second job may mean you've given up your first job
In Vassella v Ambulance Service of NSW [2017] NSWIRComm 1018, Mr Scott Vassella, a manager of insurance claims at the Ambulance Service, suffered some stress from alleged mis-management. Mr Vassella filed a workers' compensation claim. That claim was approved and Mr Vassella began receiving payments. After obtaining a medical opinion that he was fit to work anywhere but at the Ambulance Service, Mr Vassella obtained a full-time position at Warringah Council. Mr Vassella did not seek the Ambulance Service's approval for this secondary employment. He also continued to receive workers compensation.
"A significant risk of secondary employment is fatigue. Studies have shown that the effects of a lack of sleep are comparable to alcohol consumption. "
After about three months, the Ambulance Service found out about Mr Vassella's other job. Council terminated Mr Vassella's employment, saying that he had abandoned his employment.
Mr Vassella filed an unfair dismissal claim and lost. The Commission decided that getting a second full-time job (in direct conflict with his substantive employment) is pretty clear evidence that you've abandoned your first one.
A dishonest secret
Finally, we look to the unfair dismissal claim brought by Ms Khiloud Shakir, a disability care worker employed by the NSW Department of Family and Community Services: Shakir v Department of Family and Community Services [2017] NSWIRComm 1040.
In August 2014, Ms Shakir lodged a workers' compensation claim as a result of stress resulting from an altercation at work. She claimed total incapacity for work. Surprisingly, that 'total incapacity' did not stop Ms Shakir from securing other employment. She obtained a second job performing essentially the same role, but for a NGO.
Ms Shakir remained silent about her second job in all of her subsequent workers' compensation forms. She was paid for having total incapacity. So, when FACS eventually found out, Ms Shakir was dismissed.
The Commission found Ms Shakir's deceptive conduct to be fundamentally inconsistent with the relationship of honesty and trust required in employment. "That conduct was misconduct", the Commission said, "[her] active deceit struck at the heart of the employment relationship". Ms Shakir lost her unfair dismissal claim.
Conclusion
Secondary employment is not a right. Employers have duties to protect the health and safety of all of their employees. Conversely, employees have important obligations including:
- to co-operate in managing safety;
- to fulfil their employment contract; and
- to act in the best interests of their employer, which includes avoiding conflicts of interests.
Secondary employment challenges these duties and obligations. Reasonable discussions about secondary employment and managing the above duties and obligations are necessary.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
