Can Your Employer Sack You For Having A Second Job? Fair Work Says Not Always.

A recent Full Bench decision of the Fair Work Commission provides critical clarity for workers navigating secondary employment, side businesses, and contractor arrangements.

The case of Adidem Pty Ltd v Suckling [2014] FWCFB 3611 reinforces an important principle: not all secondary work is a conflict of interest, and employers cannot simply assume it is.

Can You Work a Second Job? Fair Work Confirms: Not Always a Conflict Adidem Pty Ltd v Suckling [2014] FWCFB 3611

The Facts: Side Hustle Leads to Dismissal

The worker in this matter was employed as a retail manager with The Body Shop. Outside of her employment, she also worked as an independent contractor for PartyLite, a company selling candles and home fragrance products.

Key points:

• PartyLite was not a competitor of The Body Shop

• The employee performed this work in her own time

• Her employment contract prohibited working for competitors, not all secondary work

Despite this, the employer directed her to cease the contracting work. When she refused, she was dismissed.

The Core Issue

The central question before the Full Bench was:

Was it unfair to dismiss an employee for engaging in independent contractor work outside her employment where there was no competition or conflict?

The Decision: No Conflict, No Valid Reason

The Full Bench found decisively in favour of the worker.

Key Findings

1. Contractual Interpretation Matters

   • The employment contract only prohibited work for competitors

   • It did not prohibit independent contracting generally

2. No Competitive Conflict

   • The Body Shop and PartyLite sold different products

   • They were not operating in the same market space

3. Different Roles and Duties

   • Employment: management and administrative responsibilities

   • Contractor role: independent sales

4. No Breach of Employment Obligations

   • The employee did not misuse confidential information

   • There was no evidence of reputational or operational harm

Outcome

• The dismissal was found to be unfair

• The employee was awarded five months’ compensation

The Broader Legal Context

This decision aligns with long-standing principles concerning restraints, conflicts, and legitimate business interests.

For contrast, in restraint cases such asthe courts recognise that employers may legitimately protect:

• confidential information

• client relationships

• goodwill

However, those protections must be reasonable and targeted—they cannot extend to restricting lawful, non-competing work.

What This Means for Workers

You are generally entitled to:

• Work a second job or side business

• Engage in contractor arrangements

• Earn additional income outside working hours

Unless:

• You are working for a direct competitor

• There is a clear and enforceable contractual restriction

• There is a real conflict of interest (not a hypothetical one)

What This Means for Employers

Employers must be cautious before asserting “conflict of interest.”

To justify disciplinary action, there must be:

• A clear contractual prohibition, properly drafted

• A genuine competitive overlap

• Evidence of risk to business interests

A mere preference that employees remain “exclusive” is not sufficient.

Strategic Insight (From an Advocacy Perspective)

This case is highly instructive in unfair dismissal matters involving alleged conflicts of interest.

When representing workers, the critical forensic questions are:

• What does the contract actually prohibit?

• Is there real competition, or just perceived overlap?

• Has the employer identified a legitimate business interest at risk?

• Is the direction to cease work lawful and reasonable?

If the answer to those questions is weak, the dismissal will likely fail the valid reason test.

MYUNION Takeaway

This decision sends a clear message:

Your time outside work is not automatically controlled by your employer.

Secondary employment is not misconduct simply because an employer dislikes it. There must be a genuine, identifiable conflict grounded in contract and commercial reality.Read the full case decision HEREDownload your MYUNION LIFE Membership. FREE to all Australian workers in all industries States and Territories. https://www.myunion.au/product-page/myunion-free