Conflict of Interest equates to serious misconduct

Conflict of Interest equates to serious misconduct.png

Conflict of Interest equates to serious misconduct

The Fair Work Commission has upheld the summary dismissal of a designer who undertook work for a potential competitor using the Employer’s intellectual property.

The employee had commenced work as a Graphic Designer with Sydney Tools (the Employer) on 11 January 2016. He had been promoted to a Lead Graphic Designer in 2018 until his dismissal on 17 December 2020. Sydney Tools’ primary business is to sell a range of tools both on a retail and wholesale basis and through in-store and online sales.

His manager heard rumours that the employee had been undertaking work for a competitor and claimed that this constituted a breach of the employee’s employment contract. Following a brief meeting with the employee, he was summarily dismissed.

Prior to his employment commencing, the employee received a contract of employment containing a clause that he would not:

“during the course of his employment with Sydney Tools and for the restricted period after the termination of your employment with Sydney Tools, directly or indirectly:

Within the industry, engage in, or directly or indirectly assist any person or entity other than Sydney Tools to engage in a business, or further a business interest, similar to or in direct competition with Sydney Tools’ business”.

The employee acknowledged that, in November 2020, he had been approached by a former colleague of Sydney Tools, who asked him to design a catalogue for a potential new brand. He completed the task but claimed that he had undertaken the work outside of his working hours.

At the hearing, the employee accepted that he had taken specific images from his Employer’s secure database to include in the catalogue.

As noted in the decision of Deputy President Bryce Cross, the employee’s conduct was wholly unacceptable.

“The Applicant was clearly aware that any images that he created during his employment at the Respondent became the intellectual property of the Respondent, and that the legal team or the marketing team of the Respondent had in the past taken action where images had been used without a licence or agreement”.

As he further commented, “Within the scope of the work of Graphic Designers, it is difficult to imagine a more wilful or deliberate example of behaviour by such an employee that is inconsistent with the continuation of the contract of employment, and so serious misconduct”.

The application was dismissed.

J M K v Sydney Tools (U2021/76) 8 June 2021

For questions about conflict of interest, contractual conditions, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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