A recent judgement by the Fair Work Commission has shed light on workers moonlighting as Uber drivers, after a Perth man, Mr Jacob (‘the Applicant’), was dismissed for failing to declare that he drove for the ride sharing platform. The Applicant’s employment was terminated last year from his printer position at Western Australia Newspapers Ltd (‘the Respondent’), a few months after rumours arose that he was supplementing his income through Uber.
The Commissioner heard that the Applicant was undertaking work outside of his employment with the Respondent for six months. Contrary to the express terms in his employment contract which provided that he must not engage in any “other work” without requesting and receiving permission from management. The Applicant’s second job was discovered when he drove a manager of the Respondent home.
In a meeting on 9 June 2015 the Respondent brought the relevant contractual clause to the Applicant’s attention who subsequently denied being employed by Uber, claiming it was his wife that was involved with uber. The Applicant also denied driving the Respondent’s manager home until he was shown a receipt which named the Applicant as the relevant driver. The Respondent was concerned that the night-time Uber job was interfering with the Applicant’s “fitness for work and ability to perform his printing duties.” The Applicant was notified of his obligation to inform the Respondent of any additional work he was performing. The Respondent expressed a willingness to negotiate regarding the Applicant’s role as an Uber driver providing he submitted a formal request, however the Applicant refused to do so.
The Applicant argued that driving for Uber did not constitute employment, as all money was paid to his wife and he was not a registered Uber driver. Furthermore, even if the Applicant’s actions did amount to working a second job, he argued that this was no more than an “error of judgement” on his behalf, based on a genuinely held mistaken belief that he was not technically working for Uber.
However, the Commissioner found that the Applicants actions rendered the dismissal fair for the following reasons:
- The Applicant conducted work outside of his employment with the respondent, contrary to contractual requirements;
- The Applicant deliberately misled and lied to his employer on a number of occasions; and
- The Applicant unreasonably refused to provide his employer with records of his driving history, which were readily available to him
Commissioner Williams stated that in this case “[the Applicant] was very much the architect of his own demise”, as he denied the opportunity for cooperation and transparency regarding his work with Uber, and rather chose to continue lying to his employer, amounting to “misleading and dishonest” conduct. If you have any questions regarding employees supplementing their employment income, please contact Nick Stevens, Megan Cant or Jane Murray.
Published September 2016