Worker dismissed for moonlighting as singer
According to the Australian Bureau of Statistics, 947,300 of the nation’s workers have a second job. This amounts to 6.6 per cent of the working population. This percentage has increased from pre-COVID times, when around five to six per cent of workers had a second job. One of the reasons for the increase is the cost-of-living crisis and increasing interest rates in Australia. People need to work, they need to pay their bills. This particulary applies to casual employees who have uncertain hours and future employment. Most cannot just sit around waiting to see if the employer is going to roster them on next week or “throw” them a few hours.
While holding a second job is increasingly common, employees must be aware of the legal implications and their obligations to their primary employer. It involves careful consideration of employment contracts, workplace health and safety and the potential for conflicts of interest. Also in the mix is primary employers see the second job as a threat. It shows to them a lack of commitment, a perceived lack of loyality. So know your rights and learn how to protect your position, read on.
Stevedore dismissed for second job as singer
A stevedore who was terminated for her second job as an international singer has won her unfair dismissal case. The trouble started when she fell ill while overseas to attend a performance. Her employer then accused her of being deceptive about using her annual leave to work her second job as a singer. A stevedore who was dismissed for complications surrounding her second job was the focus of the unfair dismissal case Tahmina Zobair v Sydney International Container Terminals Pty Limited T/A Hutchison Ports [2023].
Tahmina Zobair started working at Sydney International Container Terminals (SICTL) in October 2016. At that time, she was hired as a casual stevedore. By May 2017, she had worked her way up to a permanent full-time position. Alongside her employment as a stevedore, Ms Zobair also pursued a second job as a singer and performer. She regularly had paid and unpaid performances at various venues, both locally and internationally.
Singer falls ill while on paid leave to perform overseas
The crux of the unfair dismissal dispute between Ms Zobair and SICTL revolved around her annual leave requests, which were tied to her second job as a singer. In the early months of 2023, Ms Zobair submitted two separate applications for paid annual leave to accommodate overseas performances.
Her employer granted these requests. However, things took an unfortunate turn when Ms Zobair fell ill in while in Tashkent, Uzbekistan. The illness left her physically incapable of returning for her rostered shifts in March 2023. Ms Zobair secured a medical certificate from a doctor in Tashkent to prove her illness and her unfitness for travel.
Employee is dismissed
Upon Ms Zobair’s return to Australia, SICTL acted promptly. The company requested a meeting with her to delve into the circumstances surrounding her extended absence. During this meeting, the company sought comprehensive documentation. This included documentation relating to her flights, changes to her flights, as well as receipts and bank statements.
In a subsequent meeting, Ms Zobair provided her employer with documents relating to her travel arrangement. However, SICTL was not satisfied and asked her for more information. This request was not met, and on 6 March 2023, the company dismissed Ms Zobair.
SICTL’s allegations and the alleged misconduct
In its defence of the unfair dismissal claim, SICTL asserted to the Fair Work Commission that Ms Zobair “had no intention of returning” to work her shifts. That is, at the time that she applied for and was granted annual leave.
The company claimed that if she had intended to return, she would have “been able to provide documentation relating to her travel arrangements that supported her narrative.” Her failure to do so “confirmed” SICTL’s view that she was “dishonest” at the point that she requested leave. The company argued that this was misconduct that warranted dismissal. Ms Zobair, on the other hand, argued to the Fair Work Commission that “at all times” she intended to return to Australia in time to work her rostered shifts.
Fair Work Commission rules on the unfair dismissal case
At the unfair dismissal hearing, the Fair Work Commission assessed the employer’s allegations. The primary focus was on Ms Zobair’s failure to provide additional documentary evidence to substantiate her claim of illness. It was found that the absence of such documents did not establish a “dishonest intention” or “misconduct” on her part.
“Dismissal in circumstances where she had notified her employer in advance of her absence and provided a medical certificate to explain the absence worked harshly against [Ms Zobair],” the Fair Work Commission
Fair Work Commission stated
In making its decision, the Fair Work Commission considered the impressive tenure of Ms Zobair’s service with SICTL. During her eight years at the company, she had exhibited not only consistency but also a history of satisfactory work performance. The Fair Work Commission underscored that Ms Zobair had proactively notified her employer in advance of her absence. And that she had also provided a medical certificate to prove why she could not make her shifts.
The Fair Work Commission ruled in favour of Ms Zobair, asserting that her dismissal was harsh, unjust and unreasonable. The decision attributed considerable weight to her diligent notification and the documentation she provided to explain her absence. As a remedy for the unfair dismissal, the Fair Work Commission ordered that SICTL pay Ms Zobair her lost wages.
Is it lawful to work a second jobs: Rights and restrictions
It is increasingly common for Australians to hold multiple jobs simultaneously. This has particularly been the case as the cost-of-living crisis has worsened. However, the legality and implications of working a second job in Australia can be complex. And it raises questions about employees’ rights and employers’ concerns.
Your employment contract may not allow second job
One of the fundamental aspects to consider when holding a second job is your employment contract with your primary employer. Employment contracts often include clauses that outline an employee’s obligations. This can include the requirement to act in the best interests of the employer. And to not engage in activities that compete with or conflict with their primary employment.
If your employment contract explicitly prohibits secondary employment and you engage in a second job, it could constitute a breach of contract. This could therefore give your employer grounds to dismiss you. One unfair dismissal case where this issue was the focus is Bradford Pedley v IPMS Pty Ltd T/A pecvonhartel [2013]. The employee was dismissed for sending LinkedIn emails to his employer’s clients. This violated a clause in his employment contract. The Fair Work Commission sided with the employer, noting the breach and dismissing the employee’s unfair dismissal claim.
Conflict of interest
Holding a second job can raise concerns about conflicts of interest. This is particularly the case if your secondary employment competes with or closely aligns with your primary job. This potential conflict can breach your implied duty of good faith to your primary employer. The extent of this duty can vary based on the nature of your role and seniority.
A conflict of interest arising out of an employee’s second job was the focal point of the unfair dismissal case Bril v Rex Australia Ltd [2015]. In this case, a transport driver was forced to resign when his primary employer discovered he had worked as a casual driver for one of their clients. However, the Fair Work Commission did not find that there was a conflict of interest. This was because the client did not operate in the same field as Rex Australia. The Fair Work Commission also did not find any evidence that the work performed for the client overlapped with Rex Australia’s business.
Does your second job jeopardise your health and safety?
Employee safety is paramount, and employers have a responsibility to ensure the well-being of their workforce. If your second job affects your health and safety to the extent that you cannot fulfill your primary job duties safely, your employer may have valid grounds for dismissal. Another issue that has been raised and employees have been sacked over is sleep deprivation. This particularly applies in the mining and related industries. I have seen some employees getting by on as little as 2-4 hours a night sleep. Some roles around shift work cleaning, security work etc this is common. Now with truck drivers this is regulated after many fatal crashes, however nowhere else.
Council worker dismissed for second job at Woolies
One unfair dismissal case where health and safety concerns arising from a second job was a key focus is Grafton v Waverley Council (No.2) [2017]. The case involved Mr Phillip Grafton, a model employee who maintained two full-time positions simultaneously.
By day, he diligently served as a Public Place Cleaner at Waverley Council. By night, he worked as a night-filler at Woolworths. He worked up to 32 hours per week at Woolworths, which meant that he was essentially working two full-time jobs. Mr Grafton managed to work this dual employment arrangement for a two-year span. And he did it while concealing this secondary job from his primary employer, Waverley Council.
Second job revealed due to wrist injury
Mr Grafton’s double life took a dramatic turn when he sustained a wrist injury while working at Waverley Council. This injury would set in motion a series of events that would ultimately lead to his dismissal. To address the consequences of this workplace injury, Mr Grafton initiated a workers’ compensation claim. This ultimately brought to light his secondary employment at Woolworths.
Council airs concerns about second job
Upon discovering the existence of Mr Grafton’s dual employment, Waverley Council took immediate action. It was keenly aware of its obligations under work health and safety laws. The Council was concerned that Mr Grafton working two full-time jobs came with the risk of fatigue. Therefore the Council insisted that Mr Grafton needed to reduce his working hours.
The Council sought the expertise of a doctor to assess Mr Grafton’s capacity to work two full-time jobs. The doctor advised that Mr Grafton reduce his work hours. This was to ensure not only his safety but also that of his colleagues and the general public.
Mr Grafton is dismissed for failing to comply
The Council subsequently directed Mr Grafton to complete a secondary employment form. This asked him for permission to contact Woolworths so that they could discuss the particulars of his working hours. However, Mr Grafton refused to comply with the Council’s directives. As a result, the Council dismissed Mr Grafton. It cited insubordination and disobedience as the primary grounds for dismissal.
Dissatisfied with the circumstances surrounding his dismissal, Mr Grafton filed a claim for unfair dismissal with the Fair Work Commission.
Fair Work Commission rules on the unfair dismissal case
Ruling on the unfair dismissal case, the Fair Work Commission sided with Waverley Council. It ruled that Mr Grafton’s dismissal was not harsh, unjust or unreasonable. It was found that the Council’s directives to curtail Mr Grafton’s hours were not only lawful. But also, they were reasonable. It was found that Mr Grafton’s decision not to apply for secondary work approval violated the Local Government Act. And also, it violated the Waverly Council’s code of conduct.
The Fair Work Commission emphasised the Council’s statutory work health and safety duty of care that it had for all its employees, including Mr Grafton. Due to this obligation, it was found that the Council was justified in managing the risks of his dual employment arrangement.
The Fair Work Commission said that Mr Grafton was obligated to comply with the recommendations to curtail his work hours by the doctor. It was found that Waverly Council had attempted to accommodate Mr Grafton’s desire to work a second job. But in the end, he was not willing to reduce his hours at Woolworths.
Considering all these factors, the Fair Work Commission ruled that Mr Grafton had not been unfairly dismissed.
If you have been unfairly dismissed, speak to us
A Whole New Approach are Australia’s leading workplace mediators, representatives and commentators. (we are not lawyers). We help workers in every state and territory to stand up for their rights. Our expert team has over 30 years of experience helping employees take action through the Fair Work Commission. Whether you need to lodge an unfair dismissal claim or have faced workplace discrimination, we can help.
Reach out to us at 1800 333 666 for a free confidential conversation
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