Worker whose boss deemed his side hustle as ‘direct competition’ wins unfair dismissal claim

The dismissal of a former worker at Open2 for an alleged breach of contract was not “sound, defensible or well-founded”, the Fair Work Commission has determined.

Kyal Jackson-Gillespie was employed by Open2 from June 2018 until July 2024, when he was dismissed by his employer for an alleged breach of his employment contract.

Jackson-Gillespie took the matter to the Fair Work Commission as he believed that he was unfairly dismissed by Open2.

Open2 is a national company that provides building façade repairs and maintenance. On Wednesday, 3 July 2023, Jackson-Gillespie was sent a text message asking him to ask for a meeting on Microsoft Teams on that day. Prior to this, he suffered an injury to his back and was certified as unfit to work, and he still remains unfit to work.

During this meeting, Michael Hills, chief executive officer at Open2, informed Jackson-Gillespie that he had come across a company by the name of GM Facades that was registered under Jackson-Gillespie’s name and another former employee of Open2.

According to Hills, Jackson-Gillespie told him that GM Facades was a future employment plan for when there wasn’t enough work from Open2. In Hill’s evidence, he also claimed that Jackson-Gillespie performed work for other companies, that he had previously made comments about not having enough work in Perth, and that his pay was too low to cover his bills.

Jackson-Gillespie’s account of the meeting differs from Hills, as Jackson-Gillespie said he had no plans for GM Facades and that he had not performed work for another company. The meeting wrapped up after 15 minutes, with Hills telling Jackson-Gillespie that he would be dismissed. Later that day, an email was sent to Jackson-Gillespie, citing a notice of breach of employment and an immediate termination.

The email stated that Jackson-Gillespie founded a company that acted in “direct competition” with GM Facades.

His further evidence clarified that there was no work performed under GM Facades at all and that he only registered the company with the other director as a future option for work. He also claimed that, at this current moment, he has no plans for how GM Facades will operate in the future.

On the claim that GM Facades would act as a direct competitor to Open2, commissioner Pearl Lim found that Jackson-Gillespie and the other director did set up GM Facades with a view to possibly work in the same space as Open2 at some point in the future. However, he found that there was no fixed plan or intention on how and when GM Facades was to operate.

In further evidence, Open2 believed that by operating a competitive entity, Jackson-Gillespie runs the risk of disclosing confidential information for a purpose other than for the benefit of Open2.

Overall, Open2 submits that Jackson-Gillespie registered and operated a company in competition and that he performed work for this company while receiving a full-time wage from Open2. Jackson-Gilliespie refuted both of these claims.

Consideration

On the allegation that Jackson-Gillespie runs the risk of disclosing confidential information, Lim said: “This might be an issue if GM Facades was operational. But it is not. Jackson-Gillespie has therefore not disclosed confidential information.”

“Open2’s strongest argument is that Jackson-Gillespie’s registration of GM Facades is not acting in Open2’s best interests. However, even if it is an arguable breach of Mr Jackson-Gillespie’s employment contract, I do not find that it is a valid reason for dismissal in the circumstances.”

Because the company, GM Facades, is not operational and there is no indication of when it will be operational in the future, Lim decided to label the dismissal as not “sound, defensible or well-founded”.

“I find that there was no valid reason for Jackson-Gillespie’s dismissal. I further find that Jackson-Gillespie was denied procedural fairness in his dismissal. Jackson-Gillespie’s dismissal on the evidence provided was unjust and unreasonable and therefore unfair,” said Lim.

A remedy still has to be decided, and both parties will come together to discuss the terms; however, Jackson-Gillespie did give evidence that he is still receiving workers’ compensation payments for his injury.