Employee fairly dismissed for engaging in secondary employment without consent

Generally, secondary employment is only permissible with the express consent of the primary employer. This principle was upheld in the recent decision of Paul Hamilton Box v Linfox Australia Pty Ltd [2022] FWC 2894, where the Fair Work Commission (FWC) held that Mr Box’s dismissal from Linfox Australia Pty Ltd (Linfox) was not unfair, on the basis that he undertook secondary employment without Linfox's written permission.

Facts

Mr Box was employed by Linfox as a diesel fuel tank driver since 2013. He was based in Port Hedland as Linfox had a contract with BHP to work there.

Mr Box’s contract of employment prohibited him from engaging in work or providing services to any other company, business or individual, unless Linfox consented in writing. All enterprise agreements which applied to Mr Box during the course of his employment also contained an identical term which prohibited permanent employees from engaging in secondary employment unless Linfox provided written consent.

Around September 2021, Mr Box engaged in additional employment with MGM Bulk for four shifts. Following this, the Mr Box worked seven shifts for Campbell Transport between September 2021 and January 2022. He did this without obtaining written permission from Linfox.

In early January 2022, Linfox approached Mr Box and asked him if he had engaged in secondary employment. He said that he did but that he had obtained permission from a Linfox employee and an employee of BHP.

Through an investigation conducted by Linfox, Mr Box conceded that he had performed eight shifts for two different employers as a heavy vehicle driver and that he did not obtain written approval, because he did not think he was required to.

Ultimately, Linfox terminated Mr Box’s employment with notice on 3 February 2022 on the basis that he had engaged in secondary employment without obtaining Linfox’s written approval, contrary to his contractual obligations and the applicable enterprise agreement.

Mr Box subsequently applied to the FWC for an unfair dismissal remedy.

Decision

Mr Fox recognised that his contract of employment and enterprise agreement required him to obtain written approval from Linfox to engage in secondary employment. However, he submitted that he sought verbal approval from an employee of Linfox, and that it was Linfox’s responsibility to remind him that the request for secondary employment had to be made in writing. Mr Fox submitted that to the extent his actions did amount to a breach, it was not substantial or wilful as he did attempt to comply. He also argued that when he did work for two other employers, the work was not in competition with work done by Linfox, and it was done so infrequently that it did not affect his ability to carry out his duties for Linfox.

The FWC rejected these submissions as well as the evidence that verbal permission was granted for Mr Box to engage in secondary employment.

The FWC accepted Linfox’s submissions that safety was a paramount consideration in prohibiting secondary employment without express written permission. In particular, Linfox had an obligation to minimise driver fatigue, which is a large cause of incidents in the heavy transport industry. The fact that Mr Box failed to advise Linfox how much he was working in his other employment was found to be a serious breach of Linfox’s fatigue management rules in which Mr Box had been trained, and this put the safety of other employees at risk. The FWC was satisfied that Mr Box’s conduct was serious.

It was also emphasised that Mr Box’s failure to comply with his obligations was his failure alone – there was no obligation on Linfox to remind him to seek written approval.

The FWC was satisfied that there was a valid reason for Mr Box’s dismissal, procedural fairness was afforded and accordingly, his dismissal was not unfair.

Take Home Messages

While this case does not suggest that employees cannot engage in secondary employment, it is a reminder that where applicable contracts, industrial instruments and/or policies require express written consent of the primary employer, there will be grounds for termination where an employee fails to comply with those requirements.

While secondary employment can provide employees with freedom and multiple income sources, it can give rise to serious work health and safety issues.

For more specific information on any of the material contained in this article please contact Sathish Dasan on + 61 8 8217 1337 or sdasan@normans.com.au, Anastasia Gravas on + 61 8 8210 1331 or agravas@normans.com.au.