A recent decision by the Workplace Relations Commission (the WRC) offers practical guidance to employers addressing a situation where an employee is "moonlighting" – i.e. engaging in a second job, typically secretly and/or at night, in addition to their regular job. While moonlighting can be attractive to employees as a way of supplementing income or attaining new skills, it can be a challenge for employers. Moonlighting can give rise to a number of significant issues ranging from employee fatigue, poor performance and decreased productivity, to potential conflict of interest and safety at work concerns.
While employers can lawfully prohibit or limit moonlighting through carefully drafted contracts of employment and policies, can an employer dismiss an employee for engaging in unauthorised external employment? This question was considered by the WRC in A Transport Worker v A Transport Company, in which the dismissal was held to be fair.
We set out below a summary of the WRC decision and what this means for employers.
The complainant was employed by Transdev as a Luas driver. Following a tip-off that the driver was "moonlighting" as a taxi driver on nights, Transdev hired a private investigator. Over the course of two evenings of surveillance, the Luas driver was observed accepting a number of taxi fares. He was subsequently dismissed following an investigation and disciplinary process. In particular the employer relied on a clause within the driver's contract of employment which explicitly prohibited engaging in any external work without the prior written consent of the employer. Such behaviour was expressly included in the contract as an example of "gross misconduct".
The driver claimed that he had been unfairly dismissed on the basis of what he regarded to be a "minor infringement of company policy". He argued that the alleged misconduct was that he had failed to obtain prior permission to undertake the work on the night in question (his explanation being that he was driving his wife's taxi as she was ill and unable to work that night). In such unforeseen circumstances, he argued, it would have been difficult to secure prior authorisation. While the driver admitted during the hearing that he had undertaken taxi work on a number of occasions to help his wife out, he pleaded that the particular incident involved an unintentional breach of company policy such that sanction of dismissal was disproportionate and unreasonable.
The Adjudication Officer (AO) upheld the dismissal as fair.
The AO was particularly influenced by the nature of the driver's role and the element of public safety. The AO noted that Transdev operates in a "highly regulated" sector, which is controlled by specific statutory provisions - in addition to general safety, health and welfare at work statutory obligations. The AO noted that the driver's position "as a public transport driver requires a high level of application and concentration. He may have the safety of a very large number of members of the public who are his passengers in his hands".
In particular, Transdev has a regulatory obligation to monitor and prevent driver fatigue, primarily by enforcing its rest periods. The AO commented that "any external work unknown to the company in addition to permitted overtime would create an even greater risk to passenger safety".
Coupled with the significant safety responsibilities, both in respect of the public (Luas passengers) and the driver's own safety in the workplace, the AO was guided by the fact that such unauthorised external work was expressly prohibited within Transdev's policies in addition to the driver's contract of employment – and that the driver had "seen and signed" the contract.
The AO found that the decision to dismiss the complainant for gross misconduct was "within the range of reasonable responses of a reasonable employer to the conduct concerned".
While this case is fact specific, in that Transdev operated in a highly regulated sector and the driver's external work could be seen as creating a risk to public safety, there are some key takeaways for employers:
There is no specific legislation addressing "moonlighting". Rather, this case is a reminder of the importance of including a clause in employees' contracts plainly prohibiting external work. Unambiguous provisions in contracts and policies are the first step in ensuring that the foundation of any disciplinary process connected to moonlighting is fair;
Any prohibition of unauthorised external work should be clearly communicated to employees, via contract and policy documentation in addition to appropriate (and updated) training) so that expectations are clear from day one; and
In discharging its obligation to ensure the safety, health and welfare of its employees, an employer must ensure employees receive their required daily and weekly rest periods. This is of particular concern where the employee is performing a safety-critical role.