Don’t Double Dip: Court Finds Second Job Was Just Cause

With the rise of remote work options and facing the rising cost of living, many people have more than one job. Employees are increasingly tempted to take on two jobs that have flexible working arrangements but where one or both are “full-time” positions. For most employees, fully performing two full time positions simultaneously is unsustainable and, at some point, performance (and attendance) in one or both positions will begin to suffer. Several recent articles chronicle the job juggling techniques of such “double dippers”. But can employers who discover such “double-dipping” terminate for just cause?

In Dove v Destiny Media Technologies Inc., the plaintiff had a full-time position as a List Manager with Destiny, a music promotion platform, and was close friends with the CEO. The CEO bought a café and general store business and shortly after the plaintiff began also working at that new business, taking on a wide variety of roles and working during Destiny’s regular office hours. Destiny began noticing performance issues with the plaintiff’s work, including failure to complete deliverables on time, absenteeism and lack of responsiveness. Destiny placed the plaintiff on suspension, investigated the actions of both the CEO and the plaintiff, and then terminated the plaintiff for cause. The CEO was removed from his position as CEO and President of Destiny and other related entities.

The court found that Destiny had cause to terminate the plaintiff. The court summarized the relevant principles, which included the following:

1. Full time hire employees have a duty to provide full-time service to their employer unless agreed otherwise.
2. Working for outside business during business hours without approval can be a basis for dismissal. Spending significant time during regular business hours on external business can be incompatible with an employee’s duties to their employer.
3. If a second job does not detract from the employee’s job performance and that second job is known or disclosed to the employer and approved or tolerated, the employer cannot terminate [Editor’s note: but could request the employee reduce the time commitment to the second job with some advance notice if performance is slipping].
4. Depending on the performance problems arising from the other job, an employee may be entitled to proper warnings and a reasonable opportunity to correct those issues i.e. if the time spent on the other job and related problems are minor, discipline short of termination would be appropriate.
5. Case law suggests that spending more than 3 to 4 hours a week on outside work during the primary employer’s regular workday was a rough benchmark for just cause.

The court found that the plaintiff was doing substantial outside work during Destiny’s work hours without prior approval from their management and that this work negatively impacted her ability to stay current with her work with Destiny. The plaintiff was spending more than 3 to 4 hours weekly on outside work and was unable to stay on top of both jobs at once, as the plaintiff failed to complete deliverables despite reasonable deadlines. While a warning might have been required, the court found that the plaintiff’s reaction and refusal to participate in the investigation and her conduct up until that point negated the need for a warning. The court found that the fact that the other job was provided by Destiny’s CEO was no excuse – although the plaintiff refused to argue that she was “just following orders”. In any event, the CEO had been removed from his positions as a result of his own actions.

Takeaways

Although this case provides some comfort to employers concerned about full-time employees taking on second jobs, companies can take several steps to ensure that they can appropriately address this issue:

1. Ideally have a contractual term that expressly prohibits or limits other work without the employer’s express approval – particularly if an employee is in an ‘autonomous work situation’ where they set their own hours and are not directly supervised. Failing that, communicate a clear policy on this topic;
2. Consider two options:
   1. • For key/senior employees: outside employment or business activity prohibited without employer approval;
      • For other employees: any outside employment or business activity must not create a potential conflict of interest or interfere with performance of duties or be performed during regular working hours.
3. Monitor employee work and investigate suspected cases of outside work. Some employers use “key stroke monitoring” software to monitor remote employees’ activities when they become suspicious. Bear in mind that there are limitations to and requirements for the collection and use of employee personal information, so employers should consult a lawyer or professional before implementing this sort of data collection.

Note this post focusses on “time theft” to do another job. Other considerations apply if outside employment or business creates a conflict of interest, regardless of whether any regular working time is used.

If you want more information on this topic, you can contact us at:

Geoffrey Howard:       ghoward@howardlaw.ca

604 424-9686

Sebastian Chern:         schern@howardlaw.ca

604 424-9688