Warning to Uber moonlighters

Uber drivers using the service as a supplementary income should declare it to their primary employer, according to Minter Ellison partner Kathy Reid, after a driver who had worked during sick leave lost an unfair dismissal claim.

In a recent case in Western Australia, an employee at Seven West Media subsidiary West Australian Newspapers had been dismissed in July 2015 for lying about his second job.

“His (the employee’s) day job was a printer at West Australian Newspapers, which is quite a safety-critical role,” Ms Reid said.

“The fact that this fellow was moonlighting as an Uber driver had some potential safety concerns.

“They asked him whether or not he was driving for Uber and he denied it.

“There was a period he was taking quite a lot of sick leave and unfortunately for him he picked up one his colleagues … an executive.”

The key issue was that he had lied, Ms Reid said, whereas an honest response would’ve meant the company would undertake a proper risk assessment.

Ms Reid said there was a trend in the state towards people using the service to supplement incomes as the economy slowed, with fly-in, fly-out workers one example.

In the case of Fifo workers, however, off weeks were intended to be rest time, rather than time for a second job, with many employees not considering the fatigue factor.

“People who are in the mining or other safety-critical type industries, that is one of the issues that employers are really going to have front of mind,” Ms Reid said.

There was an increasing number of people driving for Uber, Ms Reid said, and it was particularly tempting for those in shift work.

She said the best thing for employees to do was to declare it.

For employers worried about their staff working a second job, the first move was to have a conflict of interest policy that required employees to seek permission before undertaking secondary employment, she said.

Then, employers should conduct a safety assessment to make sure the secondary employment didn’t cause a fatigue risk.

Steps should also be taken to manage any excessive or inappropriate use of leave entitlements, Ms Reid said.