A tram driver has lost an unfair dismissal claim against Transdev, the operator of the LUAS tram network following an investigation into his activity outside work. Transdev used the services of a private investigator to confirm that the aggrieved employee had been driving a taxi licensed to his wife.
It was found that driving a taxi constituted unauthorised external employment and amounted to gross misconduct under the employee’s contract of employment. The decision is notable on two counts as it examines the law on unauthorised external employment or “double jobbing” and also touched on the use of covert surveillance by employers.
The investigation into the matter began on foot of a report by a “whistle-blower” who alleged that the tram driver was regularly seen swapping from his private car into his wife’s taxi on Friday and Saturday evenings. Although some of the evidence supplied by the whistle-blower lacked credibility, the Workplace Relations Commission (WRC) was of the view that this did not undermine the employer’s case. Once the alleged breach had been brought to the attention of the employer, it had a duty to investigate the matter regardless of the motives of the whistle-blower.
Transdev engaged the services of a private investigator to establish the extent of the employee’s activity outside his principal work as a tram driver. The WRC found that the nature of the investigation did not breach the employee’s privacy as all the activity observed by the private investigator took place in a public place.
The fact that the workplace investigation was not undermined by the use of a private investigator supports the view that alleged data protection breaches (for instance, the use of CCTV footage in disciplinary proceedings without a CCTV policy) should be addressed to the Data Protection Commissioner rather than the WRC.
“Moonlighting” or “double-jobbing” employees present a particular risk to certain employers. It was accepted that Transdev’s decision to dismiss was directly related to its obligation to monitor and prevent driver fatigue by enforcing contractual and statutory rest periods.
The tram driver in the reported decision regularly had responsibility for the safety of large numbers of passengers while carrying out his duties and could not be permitted to work a second job. It was notable that the tram driver’s union accepted in a 2009 collective agreement that “moonlighting” constituted gross misconduct.
How do you reduce the risk of “moonlighting” employees?
As a general rule of thumb, there is nothing wrong with double-jobbing per se. However, issues can arise where the employee ends up working too many hours, which can result in a breach of the Organisation of Working Time Act.
Additionally, some employers might have a particular health and safety conscious environment which means that double-jobbing elsewhere should be restricted, as was the case in the Transdev case.
Therefore, while the decision will be welcomed by employers who provide full-time employment that does not lend itself to “moonlighting”, concerned employers must ensure that the contract of employment contains clear policies on any other employment that employees propose to undertake.
An effective policy will require employees to notify the employer of any proposals to pursue separate employment to include an assessment of the likely impact on:
- Hours of work.
- Competition – employer’s reputation.
- Health & safety.
If employers refuse to allow the proposed second employment, the employee should be directed to the grievance procedure. The policy should explicitly state that taking up a second employment without the employer’s consent could result in the termination of employment.
To learn more about protecting your business against employee claims please call Peninsula’s 24-hour advice line on 1890 252 923 to speak with an advisor