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I'll have another beer ... and what are you doing after work?
Let me take you back to a time long ago. A time when Bruce Willis had hair, and when ageing celebrities were allowed to host situation comedies, not renovation shows.
The time that I am describing is, of course, way back when the television show "Moonlighting" was the talk of the town. This was a show which was ostensibly about two haphazard, and somewhat romantic, private investigators who took it upon themselves to intervene in other people's affairs on a weekly basis.
The term "moonlighting" is generally used to describe a situation where an employee takes on a second job in addition to his or her principal occupation. In days gone by employees who "moonlighted" in secondary occupations were viewed favourably, and even with some admiration - as dedicated workers who chose to use every means of their disposal to earn additional income for their family.
Employment law does not necessarily view the concept of "moonlighting" with the same degree of admiration, as is illustrated in the recent decision in McAuley v DBH 1995 Limited (Unreported, Employment Relations Authority, Christchurch, 23 January 2002). In fact, this decision serves as a warning to employees to be cautious before indulging in any moonlit occupations.
Ms McAuley applied for a job at the Victorian Rose as a trainee barperson. As a first step, she completed an application form. Amongst other things, that form asked her to provide details of her "current employer". She initially indicated that she was self-employed, and then changed that description to suggest that she was employed as a door-to-door cosmetics salesperson. She said that she had been in this employment for five years. A director of the Victorian Rose, Mr Hannah, interviewed Ms McAuley. Following that interview she was given an opportunity of working one day, without pay, as something of a trial. She succeeded in demonstrating that she had an aptitude to perform the barperson's job, and was offered the position.
About three weeks into the employment relationship a third party provided some information to Mr Hannah about Ms McAuley. This person said that Ms McAuley was the owner and operator of her own escort agency, and that she had taken a job in Victorian Rose so that she could gain sufficient knowledge to set up her own bar on her escort agency premises.
Mr Hannah became concerned that Ms McAuley may have been dishonest in the way in which she had filled out the pre-employment application form. He telephoned her at home and told her that he had received information that she was self-employed and looking to set up her own bar. He invited her to provide some explanation and, in the event, the two met later in the day to provide her with an opportunity of doing so.
Mr Hannah said that the meeting was unsatisfactory because Ms McAuley refused to provide direct answers to his questions. He said that Ms McAuley told him that she had other business interests, but that she was not paid for them. Significantly, Mr Hannah said that Ms McAuley indicated that she thought she might set up a bar of her own, but that this may not occur for a couple of months or even years.
Mr Hannah said, following this meeting, he felt like he had been lied to. Ms McAuley had provided a dishonest answer to a question which had been expressly put to her in the application form. He made a decision to dismiss Ms McAuley from her employment.
One of the criticisms which Ms McAuley made of Mr Hannah was that he was prejudiced in his decision making by the fact that it had come to his attention that she was involved in the sex industry. The Authority was, however, convinced that he was not motivated by any such prejudice. In contrast, the Authority found that Ms McAuley was vague about her own business and that she seemed to be unwilling to provide direct answers to various questions that were put to her.
In the event, the Authority dismissed Ms McAuley's personal grievance. It found that Ms McAuley had misrepresented the truth to Mr Hannah about her personal circumstances. It held that Ms McAuley had been provided with opportunities to explain the true position but that she had failed to explain her dishonesty. The Authority said that Mr Hannah had acted reasonably in deciding to dismiss Ms McAuley from her job.
Employers may take two messages from this decision.
First, an employee's dishonesty at a pre-employment stage may, depending upon circumstances, constitute a justifiable ground for dismissal. The ability to dismiss will not, however, be automatic. An issue will only arise where a person has been asked a specific question which they have answered dishonestly - there is no obligation upon a prospective employee to offer information about prior convictions unless asked. The employer must provide a reasonable opportunity to the employee to explain any apparent dishonesty. The extent of the dishonesty must be considered in light of the nature of the employment relationship.
Secondly, employees who intend to "moonlight" in their own occupations must be careful to ensure that in doing so they do not act contrary to the obligations of loyalty and fidelity which they owe to their employer. In this case, the evidence was that the employee intended to use her employment to develop certain skills largely for her own purposes (which she had kept secret from her employer). In this case, the element of disloyalty added to the general picture of dishonesty which emerged as a result of the employee's lack of candour at the pre-employment stage.
In this case, while being in a bar where everybody knows your name may have been a direct advantage to the employee's private business, her dishonesty meant that her employment relationship was one which was destined to turn sour.
