By Sheryl Smolkin
Read this article and comments at Moneyville.ca
Times are tough and maybe you are considering taking on a second job to make ends meet. But depending on the terms of your employment, accepting a second position may mean your primary employer can fire you without notice or compensation.
That’s what happened to Marilyn Patterson, a customer service supervisor who worked for the Bank of Nova Scotia, in Port Coquitlam, British Columbia for 12 years .
In March 2008, she got a real estate license while she was still working for the bank and joined the local office of Prudential Realty. The bank told her this was unacceptable and told her to stop all her real estate activities, or take a 60 day unpaid leave of absence. During this period she could try and find another job within the bank where she would have no customer contact and/or mortgage authorization duties.
When she declined both of these options, she was fired without notice, although her supervisor testified that that there were no other performance problems and she did not abuse her position at the bank in any way. As a result she sued the bank for wrongful dismissal.
The bank has a set of “Guidelines for Business Conduct” which set out a minimum measure of conduct for all bank employees. Once a year, each employee has to sign an acknowledgement that they have read the guidelines.
Employment outside of the Bank of Nova Scotia’s working hours is not expressly prohibited. For example, the bank was not concerned when Patterson had an earlier candle-making business. But employees cannot conduct non-bank business during working hours and they must avoid any situation where the bank or the employee is in an actual or perceived conflict of interest.
Patterson supervised tellers and in some cases, she dealt with members of the public when there was a customer complaint or a teller was having a problem with a customer. Although she may have had some indirect sales responsibilities, she was not directly involved in the Bank’s lending operations.
After she got her real estate license, she openly passed out her cards to certain colleagues at the Bank. The Judge suggested that this could potentially be construed as soliciting business and the bank could not easily control this type of activity during business hours.
He also said that when evaluating the potential impact of a second job, “the role of a realtor dealing with huge transactions in monetary terms and often in a stress-filled environment where time is of the essence is far more complex than that of a candle vendor or restaurant server.”
Furthermore, he noted that Patterson was aware of the rules on conflicts before she studied to become a realtor and the bank applied the policy consistently in the cases of several other employees considering part-time jobs as realtors. The Guidelines were part of the employment contract and having regard to its business interests, the bank had the right to determine what outside activity it would permit.
As a result, the Judge found that by disobeying reasonable work rules relating to outside employment Patterson committed a serious breach of company policy and her wrongful dismissal claim for damages was dismissed.
What if you are planning to moonlight? What precautions should you take?
Employment lawyer Ronald Minken says you should carefully review your employment contract and relevant company policies to determine what if any restrictions they contain. Then if there are any questions, he recommends going to the company with your plan first to see if raises any red flags.
Also, remember that even a potential conflict of interest in your second job may be enough to get you fired, says Koskie Minsky employment law partner Arlene Huggins. “This bank employee did nothing contrary to the Bank’s interests. She was terminated for putting herself in a situation where a problem could ‘very likely’ occur.”
Employers are legally permitted to include exclusivity or conflict of interest clauses in policies that form part of your employment contract. Whether or not they will be enforced by a Court will depend on how reasonable these restrictions are in the circumstances.
For example, if you are working part-time in retail for minimum wage, trying to impose an exclusivity clause may be viewed as excessive, providing the hours and duties of one job do not conflict with the other.