While many of us find it difficult to imagine having enough spare time to take on a second job, the rise of remote and hybrid work arrangements has opened the door for enterprising employees to set up “side hustles.” While cost of living increases have left some with little choice but to moonlight, a new decision out of the Supreme Court of British Columbia (BCSC) has highlighted some of the challenges that employers might face in trying to manage workers who bite off more than they can chew.
The question that arose in the BCSC case, Dove v. Destiny Media Technologies was whether an employer wrongfully dismissed an employee who decided to assist with a start-up at the expense of her full-time job.
In 2007, Zashean Dove was hired by Destiny Software Productions Inc. on a casual basis. She completed various administrative tasks for the company in exchange for using their space for her small crystal business. She was not paid a salary, and she did not have a title.
Two years later, her employment arrangement was formalized. She became a “List Manager” with Destiny, and it was agreed that she would not work on her crystal business in Destiny’s space. She worked 40 hours per week and was required to be on-site.
Ms. Dove had been romantically involved with Destiny’s CEO (“SV”) before she started working for the company. While she asserted that the relationship was strictly platonic by the time she started working for Destiny, the two took trips together and many colleagues assumed they were a couple during her tenure at Destiny. No one raised any concerns about this or about Ms. Dove’s work performance between 2009 and 2016.
In 2016, SV purchased a café business, and Ms. Dove began assisting him with this. She had prior experience in the food industry and various culinary certifications. She initially testified that she was not paid for her work at the café, and that she completed it in her spare time, outside of Destiny work hours. The evidence showed that her role with the café was integral and included dealing with staff, ordering inventory, and attending trade shows. She admitted that she completed café work during her work day at Destiny, but asserted that it amounted to just one to two hours at most. Emails clearly showed that Ms. Dove was corresponding on café matters during her work hours, and likely putting in significantly more than one or two hours time on many days. She felt entitled to do this since she routinely worked extra hours for Destiny. She admitted that she never sought or received explicit approval to work in this manner.
In early 2017, Ms. Dove failed to meet an important deadline for Destiny. Correspondence showed that she was well aware that her café work had been taking up too much time, and she admitted that she needed to focus on her deliverable for Destiny. Her supervisors began to monitor her more closely, as unapproved absences began to add up. She was suspended in mid-2017 and a workplace investigation was launched. She was terminated for cause after the investigation had been completed.
The Court agreed with Destiny that Ms. Dove’s conduct was worthy of termination with cause, stating in paragraph 70 of the decision:
Employees have a duty to provide full-time service to their employer unless otherwise agreed. Working for outside business during business hours without approval can be a basis for dismissal.
Even though Ms. Dove had not signed a contract, she was bound by Destiny’s Code of Conduct, which referenced "honest and ethical conduct, including properly addressing actual or apparent conflicts of interest between personal and professional relationships." It also stated that Destiny equipment should not be used for “any non-Destiny related business,” and that a violation of the Code of Conduct could result in termination of employment.
This is a cautionary tale for those who might be contemplating a second job, and for a dishonest minority who view remote work as a means to collect an extra pay cheque. The Court was left with the impression that Ms. Dove chose to do the volunteer work for the café as she found it more enjoyable than her work for Destiny, but that was not her choice to make without her employer’s express permission.
The decision confirms that a side hustle can be grounds for dismissal with cause, such as where the employee, like Ms. Dove, fails to keep up with their work responsibilities.
Based upon this case, employees should be careful to prioritize and complete their full-time employment responsibilities before side hustle work and seek express permission for any side hustle work, whether paid or volunteer. Employers faced with an employee whose divided loyalties appear to be impacting their job performance should undertake a comprehensive investigation to ensure that the side job can be clearly linked to objective performance issues. Employers should proactively address the issue of side work in employment agreements and policies. Such documents can obligate employees to disclose additional employment or volunteer positions so that conflicts of interest can be identified. To protect themselves from time theft, employers can set out specific expectations and prohibitions; for example, if an employee does disclose a second job or volunteer position, then stipulate that work for the other position cannot be completed during their primary employer’s work hours and they cannot use company resources for outside purposes.
While the court found in favour of Destiny, employee transparency and clearly-stated employer expectations might have prevented this situation from becoming unmanageable for Ms. Dove, and detrimental to the interests of her primary employer.