In a recent decision of the Fair Work Commission it was held that an employer had a valid reason for the dismissal of an employee who was running her own business, even though it did not compete with or otherwise constitute a conflict of interest with the employer. However, the decision was based upon findings of fact that the employee consistently conducted the business during her working hours as an employee rather than suggesting that there is something inherently wrong with an employee conducting a private business in his or her own time.
Nevertheless, the employee won her unfair dismissal case together with a reinstatement order because there were fundamental flaws in the procedure followed by the employer in the dismissal process.
“… Ms Jackman engaged in private business activities while at work and that she did so during working hours. I do not accept that these activities were always conducted during breaks. Ms Jackman conceded as much. Whether she did so verbally or in written form is beside the point. It was activity that detracted from her duty to Lek Supply…………
I do not accept that Ms Jackman was unaware of her obligations under her contract of employment. The handwritten notations make it more likely that the contract was read carefully before it was signed, with negotiations taking place to address any concerns. I also do not accept the submission of Ms Jackman that the contract only prevents private business that is in ”direct or indirect competition” with Lek Supply. There is no reason to read the conflict of interest in such a limited way. On a fair reading, it prevents employees from engaging in private business during their employment as well as other employment in competition with Lek Supply. It requires employees to devote ”their full working hours” to the requirements of their role. It prohibits access to social media applications or services during working, unless specifically approved for the role, either on a business or personal mobile phone. It prohibits the sending of personal text or chat messages at work.”
Abigail Jackman v Lek Supply Pty Ltd T/A Lek Supply  FWC 6154 per McKinnon C