Termination of employment; private business by employees

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 [2018] FWC 6154 per McKinnon C