Legal ruling clarifies when employees can be sacked for ‘moonlighting’
Employers will welcome guidance on when they can and can’t stop an employee from moonlighting, following a recent legal ruling.
A tram driver was regularly seen getting out of his own car and into his wife’s taxi (she was a licensed taxi-driver) on Friday and Saturday evenings, raising the suspicion he was moonlighting (sometimes called ‘double-jobbing’). The employer put a private detective on the case, and the detective confirmed that he was. The employer dismissed the driver for gross misconduct, and the driver brought a claim to the Workplace Relations Commission (‘WRC’).
Mostly, it’s lawful for employees to moonlight. However, the employer argued that this case was an exception because tram drivers are responsible for the safety of large numbers of people every day and moonlighting created a potential health and safety risk. It said it had a statutory obligation to make sure drivers actually rested during their statutory and contractual rest periods, so they weren’t too tired to drive their tram safely, and the dismissal was a direct result of this obligation. It also pointed out it had made a collective agreement with the driver’s trades union in 2009, in which the union accepted that moonlighting amounted to gross misconduct, justifying dismissal.
The WRC ruled in the employer’s favour, saying his taxi work was unauthorised external employment under his contract of employment, amounting to gross misconduct. The case makes clear that, where the nature of an employee’s job means that working in their spare time could impact their ability to do their main job properly and safely – for example, if it makes them too tired – moonlighting could be grounds for dismissal.
Where this applies, employers should ensure the fact moonlighting without permission is unacceptable is expressly spelt out in their employees’ contracts of employment and/or in formal work policies, and that it could lead to dismissal (subject to the results of any grievance if the employer refuses permission). Clauses of this sort can require employees to disclose how many hours they plan to work, whether their other work could damage the employer’s reputation and its possible impact on health and safety in their main job, to help the employer decide whether to give permission or not.
It’s always sensible to run any proposed dismissal past a specialist advisor before dismissing an employee in any event.
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