Overemployment

In Australia, it is not a new phenomenon for workers to have ‘side hustles’ to make extra cash on top of their regular employment. However, with the current rising cost of living and stagnating wages, there is a growing trend of employees  ‘moonlighting’ or pursuing overemployment to pay their bills. For some workers, overemployment is a way to have a sense of security in an uncertain job market. The Australian Bureau of Statistics found that in 2022, a record number of Australians (900,000) held multiple jobs at the same time. This article looks at potential legal issues with overemployment in Australia.

What is overemployment?

Overemployment means working more than one full-time job at the same time. While the pandemic and concomitant increase in remote work is often given the credit for the phenomenon, overemployment is not a new concept and has in fact been a trend in the tech industry for decades. It is particularly common for low-output positions or task-based occupations where workers can complete their workload under their own schedule.

It is not illegal for someone to work for more than one employer at the same time. In fact, when employed in casual or part-time roles, many workers are obliged to work for more than one employer to make a living wage. However, in certain circumstances, holding more than one job at the same time can be grounds for termination.

A worker’s employment contract may have terms and conditions that prohibit them from working for another employer. In that case, a worker’s overemployment may be a breach of the employment conditions and as such pose a termination risk. For instance, in Bradford Pedley v IPMS Pty Ltd T/A peckvonhartel [2013], the Fair Work Commission found in favour of an employer in a case involving overemployment. Mr Pedley was terminated from an architecture company despite disclosing his intention to continue undertaking private design work. However, his employer terminated him after he solicited clients of his employer’s company. The FWC agreed this was a breach of several clauses of his employment contract that specified that he must act honestly, and he could not compete with the employer or adversely affect them. The FWC concluded that the employer was justified in dismissing him because they lost confidence that Mr Pendley was promoting their interests.

Conflict of interest

As this case demonstrates, holding a second job can be a conflict of interest. This conflict may arise because the second position is in the same field as the primary employment. In fact, this is a common scenario as a worker is most likely to be able to gain secondary employment in a field where they have qualifications and experience. In that case, the employer may have valid concerns about the potential for breaches of confidentiality.

Standard employment contracts often include a clause that pertains to secondary employment and the potential for conflicts of interest. This obligation is typically that the employee will not act contrary to their employer’s interests or their duty as an employee. The FWC recently looked at this issue in Bertos v Northern NSW Football Limited [2020], where a retired professional footballer working at a governing body accepted a secondary position as a head coach with a club. When the employer became aware of this secondary employment, they raised the issue with the employee, advising him that there was a conflict of interest between the two positions, and communicated that he could not continue in both roles. Specifically, the employer thought that the worker would not be able to exercise the impartiality necessary in the governance of competitions if he held a position as head coach in one of the clubs. The employer had an additional concern that the employee could not keep up with the significant workload required by both positions.

When the employee declined to resign from his secondary employment, the employer commenced disciplinary proceedings and asked the employee to show cause why he should not be terminated. Ultimately, the employee was dismissed. The FWC found that the dismissal was justified as there was a justified concern about conflicts of interest created by the overemployment.

Workplace Health and Safety Obligations

Employers have obligations under health and safety legislation to take reasonable care of their workers. Employees have similar obligations to take care and to cooperate with their employer to manage workplace safety. As such, if the overemployment impacts the worker’s health and safety, because it causes exhaustion, haste and carelessness, the employer has a valid reason to terminate the worker.

A case before the Industrial Relations Commission of New South Wales, Grafton v Waverley Council (No 2) [2017], addressed the issue of workplace health and safety in the context of overemployment. Mr Grafton worked full-time for Waverley Council and had a full-time job as a shop assistant at Woolworths. The Council was unaware of Mr Grafton’s second employment role until he made a workers’ compensation claim due to a work injury.

The Council instructed Mr Grafton to reduce his work hours to minimise the risk of fatigue from overemployment, but he refused. He also refused to let the Council contact Woolworths with questions about his work commitments. Consequently, the Council terminated Mr Grafton for serious misconduct because of his failure to comply with lawful and reasonable directions.

The Fair Work Commission determined that in this case, the dismissal was not unjust, harsh or unfair. The Commissioner found that the Council exercised their responsibility to ensure the health of Mr Grafton and others. Because the nature of Mr Grafton’s overemployment posed potential fatigue concerns, the Council was within their right to terminate his employment.

As these cases demonstrate, an employer may have cause to terminate an employee who is overemployed. An employee should think carefully before taking a second job, and review their employment contract and any relevant company policies to ensure there is no prohibition against additional employment. It is possible that overemployment could adversely affect the employee’s health and ability to work effectively and could even lead to a justifiable dismissal. Go To Court Lawyers can provide guidance on this any other employment law issue, so please call 1300 636 846 today for legal assistance.