Originally appeared in the Irish Independent on 17 September, 2018. 

Last month, the Workplace Relations Commission (WRC) determined that the dismissal of a Luas driver who had engaged in "moonlighting" was fair in circumstances where he was found to be engaging in unauthorised external employment. But what is moonlighting and what's wrong with it?

The term 'moonlighting' is used to describe additional employment, taken on by an employee in addition to his/her primary source of employment. A variety of problems can arise, the most serious of which can be grouped as follows:

  1. Safety risks: The Safety, Health and Welfare at Work Act, 2005 requires employers and employees to take reasonable care of those present at a workplace. Depending on the nature of an employee's job, the safety of workers, clients and even the general public may be placed at risk by overworked employees suffering from fatigue-induced concentration lapses. Not only could excessive working hours lead to serious safety incidents, but employers could be found to be in breach of their safety duties in circumstances where they failed to properly manage an employee's working hours and rest periods.
  2. Inadequate rest periods: The Organisation of Working Time Act, 1997 provides that employees are entitled to minimum daily and weekly rest periods. Where an employee is working full time with one employer and working a second job with another employer it is unlikely that the employee is satisfying the requisite rest periods. Case law of the European Court of Justice (ECJ) has established that the provision of rest periods is rendered meaningless if employers are not obliged to take steps to ensure that employees benefit from minimum rest periods. In this jurisdiction the Labour Court has accepted Irish legislation imposes a positive duty on employers to ensure that, not only are opportunities available to take minimum rest periods, but that they are actually observed.
  3. Poor performance: Excessive work hours can also affect an employee's ability to adequately perform his/her ordinary duties. Fatigue from inadequate rest breaks may lead to mistakes, poor communication, decreases in productivity and changes in behaviour.

How is moonlighting regulated?

There is no specific legislation regulating moonlighting; it is simply a contractual issue. For example, where a contract of employment prohibits an employee from working for another employer, a failure to abide by the contractual term may amount to misconduct that can be dealt with as a disciplinary matter.

In circumstances where there is no express contractual term concerning outside work, there may be an implied term not to compete with an employer. However, there is no general duty on employees, outside contract law, not to undertake other work when not working for the employer.

What does case law say?

The issue of moonlighting has arisen in the context of unfair dismissal claims brought by employees who were dismissed when they were found to be engaging in outside work.

Whether this type of dismissal will be deemed to be fair will depend on whether the moonlighting constitutes misconduct to justify dismissal.

In last month's WRC decision, the employee's contract of employment contained a clause that expressly prohibited the employee from working other than for his employer without authorisation. The adjudication officer (AO) hearing this case had regard for an employer's regulatory obligations to "…monitor and prevent driver fatigue, primarily through enforcement of its rest periods". In noting the question was "whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct," the AO found that it was.

In an earlier decision by the Employment Appeals Tribunal - which previously dealt with these claims - the dismissal of an employee who was found to be moonlighting was held to be unfair in circumstances where there was no condition of employment which required that he work only for the respondent.

What can my business do to prevent moonlighting?

In the absence of legislation, the prevention of moonlighting is best managed by the use of carefully drafted contracts of employment and ancillary policy documentation.

Daily and weekly rest periods should also be brought to the attention of employees, as should any safety policies imposing duties on employees to be mindful of their own safety and that of those around them.