With an increasing number of employees working from home, and the rise in cost of living, many employees are turning to secondary sources of income to supplement their full-time employment. For employers, this presents a challenge where employees become less focused on their work and spend work hours on their side businesses.
This issue was most recently considered in the British Columbia Supreme Court decision of Dove v. Destiny Media Technologies Inc. , 2023 BCSC 1032 ("Dove"), where the Court discussed the issue of whether an employee is entitled to work on a side business during work hours, and whether such actions may be cause for dismissal.
In Dove, the employee was employed on a full-time basis for 40 hours a week with regular office hours of 8:30 a.m. – 5:00 p.m. Monday to Friday. However, during this time it was found that she was engaged in working on another venture, although on an unpaid basis, during her work hours. The employee was found to have sent a large volume of emails related to the side venture during her work hours, without the prior approval of her employer. The employee's work on the side venture was found to have impacted her ability to stay current and up-to-date with the duties of her full-time position. In one instance, she even requested that another employee assist her with signage for the other venture.
The Court found that the following factors supported a dismissal for cause:
- the employee was spending more and more time on the other venture. The employee was found to be spending at least 3-4 hours per week on the side venture during her work hours;
- the employee failed to produce materials requested by her superiors, despite numerous follow-ups; and
- the employee was slow in responding to emails from her employer.
The Court found that the following factors made the case less clear-cut:
- the fact that the employer did not have a clear business conduct guideline regarding conflict of interest and using company time and assets; and
- the fact that the employee had a lower level position and was not a highly paid employee.
Overall, the Court found that these factors were generally supportive of a dismissal for cause. The Court also discussed whether this was a situation which warranted a warning before proceeding to dismissal. The Court concluded that the fact that the employer had engaged in an investigation and the employee's subsequent actions and failure to participate in the investigation process suggested that a warning would not have altered her course of action. As such, the lack of a warning was not an issue which altered the conclusion that just cause existed in the circumstance.
This case highlights that there are some key steps which employers can take to ensure that employees understand their duties and responsibilities. This includes the following:
- Having in place appropriate clauses in employment agreements and policies related to employees devoting their full time and attention during working hours, as well as conflicts of interest clauses will ensure that employees understand and acknowledge their responsibilities to the employer.
- Having in place protocols and policies regarding the use of company equipment. For example, if employees have company laptops, having policies outlining whether the laptops can be used for personal use and, if so, when and how the laptops may be used for personal use.
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.