An employee was recently found to have been unfairly
dismissed once his employer discovered he performed work for a
client during a period of annual leave.
Mr Jim Bril told his employer, Rex Australia Limited t/a K&K
Glass (K&K Glass), he required annual leave for the purpose of
registering his car. During the annual leave, K&K Glass'
General Manager discovered Mr Bril performing work for a client.
The General Manager was disappointed by this, feeling that Mr Bril
had been dishonest when providing reasons for seeking annual leave.
Mr Bril, however, maintained that he had been truthful and that the
client offered him work after he commenced annual leave.
On his return from annual leave, Mr Bril's employment was
terminated. The main question in this case was whether Mr Bril
resigned or whether, by K&K Glass' conduct, he felt he had
no choice but to do so. The Fair Work Commission (FWC) found that
K&K Glass "dismissed" Mr Bril, by giving him the
choice of resigning or being dismissed, after seeing him working
for the client.
When determining whether the dismissal was unfair, the FWC
considered whether there was a valid reason for the dismissal.
There was no conflict of interest as there was no evidence that the
work performed for the client was work which might otherwise have
been done by K&K Glass. Further, as noted by the FWC,
"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".
But what about K&K Glass' concern that Mr Bril was
dishonest about his reasons for taking annual leave? It was unclear
whether Mr Bril had actually been dishonest. Even so, the FWC said
Mr Bril "was under no requirement to disclose the reason, or
the true reason, why he was taking annual leave or the activities
he intended to undertake while on annual leave".
Lessons learned: in the absence of a real or perceived conflict
of interest to an employer's business, undertaking secondary
employment itself is unlikely to be a valid reason for dismissal.
Therefore, employers should clearly articulate their expectations
around disclosure of, and taking up, secondary employment in
employment contracts as implied terms offer limited protection.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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