Can I fire an employee for having a second job?

The Western Australian Industrial Relations Commission (WAIRC) recently dealt with a case involving a worker appealing the decision to terminate his employment.

In its defence, the employer argued that the worker’s employment was terminated on the grounds of his misconduct during his employment.

‘Secondary employment’ activities

The case noted that the worker who filed an appeal was employed as a Level 8 Enforcement Manager and held such a position until he was dismissed on 24 November 2021, effective from 25 November 2021.

Around November 2016, the worker submitted a secondary employment application from December 2016 to December 2017 stating that he would undertake up to 40 hours of work per week in his secondary employment.

“The application was approved in the context of the [worker’s] six months long service leave being approved and discussions with the Complaints Manager regarding the [worker’s] work and life balance,” the Commission stated.

A year later, the worker sought to renew his secondary employment approval from 17 July 2017 to 31 December 2017, specifying that he would undertake up to 20 hours per week in his secondary employment.

“There is no disagreement between the parties that the [worker] engaged in secondary employment and had not made a further application for approval after 31 December 2017,” the case stated.

However, when the employer introduced an automated human resource management system, the worker understood that this meant that they needed to apply for approval to continue to engage in secondary employment on the expiry of a present approval time.

The employer contended that it terminated the worker’s employment because the worker misconducted himself by failing to apply for approval to engage in secondary employment.

“The [employer] contends that the direction to apply for approval to engage in secondary employment and to cease involvement in secondary employment until approval had been obtained were lawful and reasonable directions,” the WAIRC stated. “The [worker’s] failure to comply is sufficiently serious to warrant dismissal.”

However, the worker argued that he simply forgot to apply for approval to continue his secondary employment after the expiration period at the end of 2017.

He further noted that at no time did his supervisor raise the issue of the expiry of his secondary employment approval and that it needed to be renewed.

Commission’s decision

Ultimately, in its decision, the WAIRC dismissed the worker’s appeal on the grounds that the worker engaged in misconduct after failing to follow the employer’s direction.

“The [worker] was required to have approval to engage in secondary employment and he demonstrated by his conduct and communications that he did not intend to make an application for secondary employment,” the Commission said.

Hence, it noted that it is inappropriate to reverse the worker’s dismissal and impose alternate penalties given that he breached his obligations to the employer.