The ‘bare’ essentials: You must control your employees’ out of hours conduct

Strange (and somewhat humourous) developments in Western Australia show why all employers should be regulating what employees do in their spare time – here’s how to do it!

With gym-fit lifestyles on the rise, mine workers are frequently making use of campsite gyms between shifts. Strangely, this can be linked to a visible increase in the number of male topless/stripping businesses in mining communities – with miners able to take up this “second” job in their rostered downtime.

Having a second job isn’t a foreign concept within the mining industry – or any industry for that matter. In fact, nearly every workplace would have an employee that supplements his or her primary income by running another business, or doing freelance work, “on the side.”

So what?

Humour aside, there are many reasons why this is problematic.

  1. Work Health & Safety: various industries require a minimum rest period between shifts. This is because fatigue is the primary cause of many workplace accidents (especially in labour intensive industries). If employees have second jobs on the side, then they may not be fully rested before the commencement of their next shift. This can place an employer at risk of being vicariously liable when such accidents occur.
  2. Theft of Business Assets: At some point, employees will no longer be able to balance both jobs. The “side-project” may become so successful that he or she resigns from your employment to focus on this opportunity. This is problematic if the employee used resources, knowledge, or contacts of your business to kick-start the other job. Unless regulated, it is all too easy for employees to use such knowledge/ documents for personal gain – often at the employer’s expense.
  3. Loss of Reputation: When an employee talks about having a second job this will inevitably spread around the workplace. Other employees may follow suit if the opportunity is easy for them to take up. It can also negatively affect the reputation of a business if the second job is controversial (such as stripping) or if the public perceives that your employees earn so little that they need a second job to support themselves. This can affect the quality of applicants for future roles.
  4. Workplace Culture: Employees having a second job can lead to a variety of different behaviours, such as the relevant employee taking “sickies” to attend the second job, bullying or coercion if some workers need to pick up the slack of other fatigued workers, laziness or apathy towards your business, high turnover rates of employees, vocal dissatisfaction with wage levels – the list goes on. All of this affects an employee’s productivity and loyalty to your business.
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There are some easy, low maintenance ways to regulate out of hours conduct, which will drastically minimise the risks to your business. This applies not only to second jobs, but to criminal activity, use of social media, post-employment restraints and any other conduct that occurs out of house and that can affect the reputation or profitability of the business.

Importantly, regulating “out of hours” conduct will carry no legal weight if done incorrectly, so you need to make sure that you:

  1. Have properly drafted Position Descriptions for all employees;
  2. Have concise and accessible Policies that define acceptable and unacceptable behaviour;
  3. Have properly drafted Employment Contracts that mandate compliance with policies;
  4. Include enforceable restraint clauses in your contracts; and
  5. Have training or reimbursement arrangements managed in separate agreements (outside of the employment contract).

As a general rule, such restraints are more likely to be legally enforceable if an employer invests time or resources into training an employee; if an employee is remunerated above an Award Wage; if the position has an element of danger to it; or if the employee’s position affords him/her with access to sensitive information of the business.

It is essential that all employers restrain as much undesirable conduct as possible in order to protect the legitimate interests of the business.

Disclaimer

This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.

Queries

For further information please contact the author Robert King, Partner – Employment, Workplace Relations & Safety (Brisbane and Sydney), or Martin Alden, Partner – Employment, Workplace Relations & Safety (Melbourne).

The Author

Robert King

PARTNER, BRISBANE