The Side Effects of Moonlighting During Working Hours

With the increase in remote and hybrid work arrangements, employers are increasingly being faced with situations where employees have taken on “side hustles” or “side gigs.”  In Dove v Destiny Media Technologies Inc., 2023 BCSC 1032, the Supreme Court of British Columbia found that an employer had “just cause” to terminate a full-time employee who worked on a side business during working hours. 

Background 

In this case, Zashean Dove (“Dove”) worked for Destiny Media Technologies Inc. (“Destiny”) on a full-time basis.  In the year prior to her dismissal, Dove started working for a café business.  Dove’s work with the café was broad in scope and included managing staff, ordering inventory, and attending trade shows.

Destiny ultimately placed Dove on paid administrative leave pending an investigation into her conduct. Dove refused to participate in the investigation and was subsequently dismissed for “just cause.” Dove commenced a lawsuit against Destiny claiming that she was wrongfully terminated from her employment.

The Court’s Decision

The Court dismissed the Dove’s wrongful dismissal claim finding that Destiny had “just cause” to terminate her employment.  In coming to its decision, the Court maintained that: “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”.

The Court found that Dove spent time working on the café business during her regular office hours.  Specifically, Dove would regularly receive/respond to emails relating to the café business during her working hours with Destiny.  At the same time, Destiny saw a simultaneous decline in the quality of Dove’s work.  Dove was falling behind on routine tasks, had excessive and unapproved absences, and failed to respond promptly to her Destiny’s requests. 

The Court also held that there was “just cause” for Dove’s dismissal based on its finding that the Dove performed substantial work for the café business during Destiny’s work hours without prior approval, the extensive reach of the side business work, its impact on Dove’s ability to fulfill her work-related duties, and her failure to deliver on Destiny’s work product. 

Key Takeaways

What does this mean for employers? Employers are encouraged to include a provision in their employment agreements or employee handbooks clearly indicating that full-time employees may not work for another employer during working hours and are expected to provide full-time service. Furthermore, if employers find themselves in a situation where an employee is moonlighting during working hours, employers are encouraged to conduct an investigation into the employee’s conduct before dismissing them.