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HT for Small Biz - Newsletter

Commission rules against “moonlighting” employee’s claim due to use of company property

A manager’s bullying claim against her chief executive backfired after an investigation into both employees’ emails revealed her serious misconduct.

The manager, had been working three days a week until November 2012 when she claimed her chief executive’s recent scrupulous supervision of her work and unreasonable requests for her accountability were intimidating and bullying.

The chief executive admitted he had been monitoring the manager more closely but insists he was prompted to do so after the company discovered that the manager had recently been using company intellectual property and resources for her alternative employment. The company terminated her citing in its letter of termination the use of the company’s intellectual property to perform work for another organisation during her employment.

Following her termination, the manager lodged an adverse action claim, alleging she had been dismissed for exercising her workplace right to make the bullying complaint.

During the investigation, the federal court granted the company access to both employee’s work email accounts to facilitate the discovery of any evidence of the bullying claims. Upon observing the emails, several instances where the manager had used the company’s documents to develop similar processes for another organisation were found, ultimately proving her serious misconduct.

The Judge discharged the onus on the company to prove that it had dismissed her for serious misconduct. The chief executive was also cleared of the bullying accusations as his meticulous supervision of the manager was deemed justifiable given the seriousness of her actions.

It is important to acknowledge that it is not unreasonable for a part-time employee to have outside employment. However, the Judge stated that located within the company’s Other Employment Policy was the necessity to notify the company to any significant alternative employment that the manager was engaged in. “Remarkably, she did not mention it in any email, nor did any of the witnesses have any knowledge of her outside employment”.

This article is evidence as to why carefully written and correctly implemented company policies regarding outside employment and intellectual property is crucial to protecting valuable resources and information owned by your company. Furthermore, having the knowledge of any alternative employment that your staff may be engaged in has many advantages such as highlighting the need to arrange more flexible working hours and identifying outside skills staff members are developing that you can capitalise on.

Feel free to call us on (02) 8882 9694 if you have any queries surrounding your companies outside employment and intellectual property policy.

 Suite 4.05, 5 Celebration Drive
 Bella Vista NSW 2153

Ph: 02 8882 9694 M: 0415 225 920 

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