Employee Dismissed for “Engaging in Unauthorised External Employment”

by Siobhan Lafferty, Lawyer in the Employment Department, McDowell Purcell

Whilst some employees may be tempted to take on a second role, they should be mindful of the terms and conditions as laid out in their contract of employment. This issue was highlighted in a recent case at the Workplace Relations Commission, A Transport Worker v A Transport Company where an employee was dismissed on the grounds of having undertaken some work elsewhere.

In this case, the Complainant, a Luas driver, brought a case against the Respondent for unfair dismissal. The Respondent dismissed the employee because he had “engaged in unauthorised external employment”. The Respondent considered that as it is highly responsible position and that doing such additional work could be considered as a threat to being able to carry out his role as a Luas driver. The employee’s contract of employment was clear that employees could not do any work outside their role and had followed up with a further document some years later emphasising this point.

Interestingly, the Respondent became aware of the fact that the employee was engaging in other employment, that other employment being that he was driving a taxi, when the Respondent received an anonymous tip outlining that he was doing so. The Respondent then undertook an investigation and disciplinary hearing, where the Complainant acknowledged that he had been driving the taxi, which ordinarily his wife drove, because she had been ill and that he only drove the taxi in emergencies.

The Complainant argued that the conduct only amounted to a minor infringement of the Company policy, and therefore the sanction was disproportionate and unreasonable. The Complainant also challenged the anonymous tip off which the Respondent had received, pointing to the fact that the wording used in the complaint exactly mirrored the Company’s policy. It was suggested that the complaint was actually by a fellow employee who was trying to cause trouble for the Complainant.

Whilst the Adjudication Officer (AO) in this case agreed that “the manner in which the matter came to the respondent’s attention is suspicious indeed”, the view was that it did not matter how it came to the Respondent’s attention, and when it did come to its attention it had to act accordingly. The AO considered that the policy was clear, and further that the employee’s role requires a high level of concentration to ensure the safety of passengers and it was therefore within the range of reasonable responses to dismiss the employee for engaging in external employment.

Although employers may take comfort from this particular decision, caution is still to be advised if employers intended to dismiss someone for having another role. It was clear from this case that the health and safety critical nature of this particular job gave the Respondent a stronger position in relation to the dismissal. However, the first step in being able to consider this issue at all would be ensure there is a clause in employees’ contracts of employment which should outline the position around employees taking up additional employment.

About the author
Siobhán is a lawyer in the Employment Department at McDowell Purcell, and regularly advises both corporate client employers as well as employees. Siobhán has extensive experience in advising on all aspects of employment law and has advised on a range of issues from redundancies to discrimination complaints. She also has experience in working on contentious matters across the UK and Ireland, including High Court proceedings.

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