Worker dismissed for side-hustle he claims to have disclosed

A Victoria-based talent acquisition manager has had his unfair dismissal case knocked back after failing to disclose a side-hustle his former employer said conflicted with, and took attention away from, his 9-to-5 job.

The Fair Work Commission last week ruled that Anteo Recruitment Group’s decision to sack Michael McGregor was valid because he had breached his contract by running a personal business alongside his role at the firm without approval.

McGregor, who started a life coaching and counselling business, claimed he had informed his boss, Anthony Wilks, about his coaching activities by bringing it up at weekly team meetings, during one-on-one conversations and over team lunches. “At no point did Mr Wilks express concern,” he claimed in his witness statement.

Research from Westpac last year found more than half of Australians are either earning income from a side-hustle or actively considering starting one, with about three-quarters of those people citing extra income as their main motivation amid cost-of-living pressures.

Wilks said McGregor had never disclosed paid coaching, and that the personal counselling that his employee had referenced was regarding his personal wellbeing rather than business.

One employee at Anteo said in her witness statement that McGregor had often shared updates about his coaching during weekly team meetings and that she had never heard the boss raise any concerns or objections.

However, several other employees who were at these meetings said they had no knowledge of McGregor running his own business until November 2024.

While employed at Anteo, McGregor wrote an 80-page e-book which he attached to an email to Wilks. “There is no expectation of any sort e.g. reading it at all,” McGregor said in the email. “If you do read and there is anything you want to share, I’m open to that – including anything from an Anteo business point of view.”

McGregor also claimed he ran his LinkedIn profile – which had “executive counsellor and coach” for “Mike McGregor Counselling & Coaching” on it – by his boss, who said he would review it but did give his approval.

However, Commissioner Mark Perica said neither of these things proved Wilks had full knowledge of McGregor’s business.

Examining the book “may have implied the secondary career” McGregor was pursuing, he said. “[But] it falls short of clear evidence … particularly when the e-book was attached to an email which essentially said that he did not have to read it.”

McGregor also ran an Instagram account for his business which Wilks said he discovered had an “excessive amount” of posts.

“I couldn’t work out for [the life of] me how someone could produce as much material and hold down a full-time job … so I had concerns that he was using his time on company time because we had given some flexibility around where Mike would work,” Wilks said, noting he was concerned it had cost his business.

However, the commissioner noted Anteo had, in its evidence, “unhelpfully” failed to include screenshots of [McGregor’s] Instagram account or personal website before laying him off.

In November 2024, Wilks raised his concerns with McGregor, who confirmed he was running sessions for his personal business outside work hours.

After auditing McGregor’s work phone and email, the firm found emails in which McGregor was booking consultations during office hours, sending coaching notes from his Anteo laptop to a private address, and asking Anteo candidates for favours in return for help through his new business.

McGregor said messages he had sent from his work email to personal email contained brief planning notes drafted during his entitled lunch break.

However, the commissioner said McGregor had an obligation to avoid possible conflicts of interest. “Although a coaching and counselling business does not directly compete with the recruitment business of Anteo, it is, at its lowest, adjacent to recruitment activities of his employer,” he said.

Further, because McGregor was employed in a managerial role at Anteo, the commissioner said it was arguable that the obligation to focus attention exclusively on Anteo extended beyond normal business hours.

“The material produced by McGregor to support his parallel business in the form of a website, podcasts, Instagram posts, YouTube videos, and the production of an e-book implies a great deal of his time and attention was diverted to his coaching and counselling business,” he said.

While the ruling acknowledged Anteo may not have given McGregor enough warning about the risk of being dismissed, and didn’t provide him a proper opportunity to respond or rectify the conflict, the commissioner said this didn’t amount to an unfair dismissal.

“The small size of the business of Anteo, the predicament in which Anteo found itself, and the lack of a specialist human resource function explain the defect in the process of the dismissal,” he said. “Further, given the nature of the misconduct and the managerial position held by Mr McGregor, the act of dismissing him on notice was justified.”

Sydney University Professor Emerita Joellen Riley said there was often an “implied duty of loyalty”, with employees expected to pay exclusive attention to the work they were employed to do during their contracted hours.

Employers wanting to have say over what their workers did outside of these hours generally needed a written clause spelling this out in their employment contracts, Riley said, although people in managerial roles were regularly assumed to have an obligation to put the interests of their company first, including refraining from pursuing something that could affect the reputation of their employer or which could conflict with their job.

However, Riley said that in this particular case, there was an explicit requirement for the employee to provide exclusive service, which was fairly standard in professional service contracts.

“He signed an employment contract containing clauses promising exclusive service, then set up a side business of his own which he seems to have spent a lot of time pursuing,” she said, noting the small business employer had given him four weeks of termination notice and relied on a clear breach of the contract. “If there is any lesson in this, it is that if you want to set up your own business, don’t take employment that requires exclusive service.”

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