Working for customer whilst on annual leave is no conflict of interest

A delivery driver who had his employment terminated for working for one of his employer’s customers whilst on annual leave has won his unfair dismissal case before the Fair Work Commission.

The employee worked for a glass manufacturing business as a delivery truck driver. When the employee asked to take a period of annual leave, there was some discussion with the employer about the reasons for the leave as he had not provided the required 2 weeks’ notice.  The employee told his employer that he needed to take the leave to get his car registered.  The leave was approved.

During the annual leave period, the employee ended up performing some work for one of the employer’s customers, but not the same as his employer’s business. The employee said that he decided to do this work due to the financial hardship he was facing at the time.  He also thought that his employer may find out he was doing this work and that they may pay him more as a result.

The General Manager of the employer saw the employee working for the customer during his period of leave and decided to terminate the employee’s employment based on an alleged conflict of interest. The General Manager confronted the employee and gave him the option of resigning.  The employee took the opportunity to resign, feeling that he had no other choice given the impact that a termination would have on his employment record.

Vice President Hatcher determined that the employee had been constructively dismissed. She found there was no conflict of interest and therefore no valid reason for the dismissal.  She held that where the secondary employment does not encroach on the primary employer’s ‘field of business’ there will not be a conflict of interest.  She also held that there is no duty to disclose the secondary employment in that scenario.

The employee was awarded $12,864 in compensation.

Lessons for employers: The case demonstrates that care should be taken when terminating an employee in relation to secondary employment, regardless of whether it occurs during an annual leave period or otherwise.

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