It is not uncommon for an individual to work a second job – or to take on a “side hustle” – to supplement their income. Most employers will tolerate such activities where they are non-competitive in nature, carried on outside of working hours, and do not interfere with the individual’s performance of their duties.
Ontario employees are expected to act in the best interests of their employer and to work when being paid to do so. As such, the propriety of any outside work will be assessed against these requirements.
In a recent decision from British Columbia, Dove v. Destiny Media Technologies Inc. (2023 BCSC 1032), the Court found an employer had just cause to terminate employment where, over a period of several months, an employee’s performance had suffered as a result of spending several hours per week (during paid office hours) working for a second business.
The Plaintiff worked for the defendant employer for around 8 years on a full-time basis. In the year preceding her dismissal, she began working for a café and general store (the “Café”). The Plaintiff’s work with the Café included: sourcing and ordering alcohol; managing inventory; product pricing; corresponding with employees, contractors, and suppliers; and attending trade shows.
The Court found that in the 6-month period preceding her dismissal, the Plaintiff spent time on Café work during her regular office hours at the defendant employer. During this time, the Plaintiff sent or received approximately 2700 emails related to Café business. The evidentiary record showed her to be regularly responding to such emails during her working hours with the defendant employer.
The Plaintiff’s moonlighting at the Café was compounded by a simultaneous decline in the quality of her work for the defendant employer. The Court noted that the Plaintiff was falling behind on many routine tasks, had excessive, unapproved absences, and failed to respond promptly to her employer’s requests.
The employer ultimately placed the Plaintiff on paid administrative leave pending an investigation. The Plaintiff refused to participate in the investigation and was subsequently dismissed for cause.
Guidance for employers
The Court confirmed that employees have a duty to provide full-time service to their employer unless otherwise agreed. As such, working for outside businesses during regular business hours (absent prior approval) will warrant discipline.
In the instant case, the court concluded there was cause to terminate the Plaintiff’s employment. In reaching this determination, the court considered several factors, including:
- the volume of emails (and time stamps on the same) indicated the Plaintiff was performing substantial Café work during regular business hours; and
- the Plaintiff’s work for the Café negatively affected her ability to do her job for the defendant employer – she failed to respond to emails in a timely manner or complete routine tasks (while nonetheless being able to attend promptly to Café work).
Dove serves as a reminder that moonlighting during regular working hours – particularly where it results in the individual failing to meet the requirements of their role – will provide grounds for discipline. Such conduct, where unapproved, is inherently at odds with the employee obligation to devote full time and attention to the best interests of their employer during regular working hours and thus may reflect an irreparable breach of trust.
“Side hustles” are increasingly common, in part, as a result of advances in social media and e-commerce. It is thus foreseeable that employers may increasingly find employees are working outside of their primary employment. Given this reality, employers may wish to implement written contracts to clearly set expectations during employment and take ongoing steps to monitor the same. Among other things, a written contract can confirm an individual’s duty:
- to work for the benefit of the employer while being paid for the same;
- to refrain from working for competitive businesses, and
- to avoid actual and perceived conflicts of interest [and promptly disclose the same].