Employer X has forgotten about me, is it illegal to receive a salary from employer X and Y?

LDrPhil on 08/02/2022 - 23:04
Last edited 08/02/2022 - 23:52

Employer X has forgotten about me, soon to onboard with employer Y.

I am considering if it is a possibility to receive salary X and salary Y until employer X realises that I still exist.

I have looked into both employment contracts to see nothing mentioning anything specific about being employed by other employers.

What do you think?

Vic, Aus laws by the way.

Edited: Employer X have repeatedly told me they will put me onto an account and that I should wait. So this is what I have been doing. I have no explicit responsibilities because I yet to be put on an account, except those that are mentioned on my employment X contract.

Education & Work

Comments

  • USER DC on 08/02/2022 - 23:19

    Yeah usernamechecksout Dr Phil.

    Some companies have anti competition rules/ conflict of interest rules. These are meant to deter people working 2 jobs, of same industry in direct competition, e.g. Coles vs Woolworths, BP vs Shell, McAss vs KFC, CR vs CB too I think? ebay vs amazon ? stuff like that.

    Other than that it also depends on your position in the company. (Ofcourse you probably aint a CEO or that higher management, otherwise wouldn't be at this place). Those position demand extra hours being given to 1 employer (hence using those hours on another employer may be concerning, e.g. a Casual team member level position probably doesn't need to dedicate full 40 hrs a week, hence not bound by a contract that restricts his availability at other employers, this is different for like a Full time manager, who can only work outside his contracted hours (and that too hours that dont affect the first employer)

    • DrPhil on 08/02/2022 - 23:23

      There is a definitely a section stating that if I were to work for a 'named competitor' that I would have to be put into a restraint area of employer X.

      "accept any offer of a contract of services or contract for services or any other arrangement from a Named Competitor, if my engagement with the Named Competitor would directly or indirectly involve or require me to work in a business in the Restraint Area;".

      However, employer Y is not a 'Named Competitor'.

      How would this relate to conflict of interest rules?

      Thanks for the reply.

      • USER DC on 08/02/2022 - 23:26

        It is generally speaking of employers in the same industry with direct competition e.g.

        Coles vs Woolworths, BP vs Shell, McAss vs KFC, CR vs CB too I think? ebay vs amazon

        But if its something like

        Woolworths vs BP, Shell vs Coles, McAss vs SB, Target vs Aldi. I think the conflict of interest is not that strong to justify quitting one job AKA one employment contradicts your personal opinion of the companies vs its direct competitors. Hence this kinda situation will likely allow to keep two jobs. I am in similar position too, if I get a better pay from a direct competitor, I will simply resign from my first job (which I hate honestly, so no point me even thinking about 2 jobs)

        • DrPhil on 08/02/2022 - 23:37

          Well employer X is a humongous size technology (multinational) services firm, whereas employer Y is a medium size (Aus based) technology services. Both in the same industry.

          Something to consider as well is that employer X have yet to put me onto an account and have repeatedly advised me to wait. Which is what I have been doing.

  • elgrande on 08/02/2022 - 23:22
    +1

    Have you ever heard of debt collection

    • DrPhil on 08/02/2022 - 23:23

      No, what could happen?

      • gmail92 on 08/02/2022 - 23:25
        +1

        It's money you are not entitled to; and they are well within their rights to demand that money to be returned whenever that may be realised.

        • DrPhil on 08/02/2022 - 23:31

          Employer X have yet to put me onto an account and have been advising me to wait, this has been going on for a while. So I have been waiting, how would they know that I am employed by employer Y?

          • gmail92 on 08/02/2022 - 23:40

            @DrPhil: Are you earning that money as wages/salary ongoing for performing work from Employer X?

            • DrPhil on 08/02/2022 - 23:44
              -1

              @gmail92: I haven't been given any responsibilities as they have yet to put me onto an account! They are not very good on keeping their word on what they've told me. e.g. "ill email you", "someone will contact you", "you'll be on by 'Z' date". Empty promises.

              • gmail92 on 08/02/2022 - 23:50

                @DrPhil: Whatever helps you to sleep at night.

                The facts is you haven't earned the income, they are well within their rights to take legal action to recover said income from you if necessary.

                • DrPhil on 08/02/2022 - 23:55
                  -3

                  @gmail92: Thanks for your reply. Your argument would mean that you don't think I earn my income even as of right now.

                  • gmail92 on 09/02/2022 - 00:24
                    +8

                    @DrPhil: If you were satisfied that you were deserving of that income, you wouldn't be here asking questions. That much is clear.

  • Paccers on 08/02/2022 - 23:23
    +1

    My not-a-lawyer-armchair-expert answer would be yes it is illegal. Probably something around knowingly accepting payments from an entity you are no longer employed by (acting in bad faith / legal duty to alert the previous employer?)

    • DrPhil on 08/02/2022 - 23:25

      I would still be employed by employer X, they have been telling me that they would put me onto an account over and over again. So I have been waiting as they advised.

      • Paccers on 08/02/2022 - 23:26

        Please disregard my unqualified advice then :)

        • DrPhil on 08/02/2022 - 23:29
          +1

          In any case, thank you for your reply. have a good night

  • avoidfullprice on 08/02/2022 - 23:25
    +1

    ATO will have record of your salary from both employers. If employer X can say there's is no way you can work both jobs at the same time (e.g. both work is 9-5), then they will take money back of you. Whether that's a criminal record I dunno.

    • DrPhil on 08/02/2022 - 23:27

      Who do you think would be taking my money back? the ATO or employer X? I should have mentioned that employer X have been telling me over and over again that they will put me onto an account. They suggest that I should wait and that's what I've been doing.

      • avoidfullprice on 08/02/2022 - 23:34

        Employer X, as this is technically fraud to get paid for work you knowingly havn't done

        ATO holds evidence of your fraud. But unless you are evading tax they won't recover money off you.

        • DrPhil on 08/02/2022 - 23:41

          I understand it may seem like fraud but I disagree, don't you think I am doing what they have instructed me to do which is to wait for them to put me onto an account. What do you think?

          Also I do not plan on evading tax.

  • Jimothy Wongingtons on 08/02/2022 - 23:27
    +2

    1. Im actually amazed drphil is not a taken username

    2. If I don’t see a ‘how to get debt collectors off my back post’ within next 12 months I’m going to be disappointed

    • DrPhil on 08/02/2022 - 23:28

      haha thanks for the humorous reply. Can you tell me why debt collectors would be on my back? I should have mentioned that employer X have constantly advised me that they would put me onto an account and that I should wait.

  • jv on 08/02/2022 - 23:33
    -3

    is it illegal

    Yes

    • DrPhil on 08/02/2022 - 23:37
      -1

      hey, you're famous.

      • jv on 08/02/2022 - 23:44
        -2

        That's why I'm wearing shades…

        • Kangal on 09/02/2022 - 01:07

          Do you wear sunglasses at night?

          • jv on 09/02/2022 - 09:42
            +1

            @Kangal: Yes,
            So I can, so I can
            Watch you weave then breathe your story lines…

  • [Deactivated] on 08/02/2022 - 23:48
    +4

    There's nothing illegal about taking on the second job. If it's not a violation of your contract, then you have nothing to worry about there either.

    • DrPhil on 09/02/2022 - 00:03

      This is what I have been saying. They've been telling me that they're doing things to put me onto a project (account), I've been waiting and waiting. I should consult with a lawyer, would you happen to know where I can start looking for one?

      • [Deactivated] on 09/02/2022 - 00:10

        Google employment contract lawyer? From what you've said though, as long as you have no direct or indirect dealings with the named company, it shouldn't be an issue at all. The only possible concern might be if they do put you on a project that you're not available for.

        • DrPhil on 09/02/2022 - 00:11

          haha Thank you very much for your replies, it is much appreciated. In the case that they do put me onto an account, I would put my 1 month in with employer X.

  • Summoner on 08/02/2022 - 23:56

    I dont understand the situation… So you signed the contract with employer X, but havent started working with them? When is the start date of the employment on the contract with employer X?

    • DrPhil on 09/02/2022 - 00:01

      Employer X employed me under 5 months ago, they have yet to put me onto an account (layman terms, they have yet to put me onto a project in order for me to begin working).

      I am employed with X work with other companies (this is consulting).

      They've been telling me that they will contact me over and over again to put me onto an account but they haven't.

      • Summoner on 09/02/2022 - 01:29

        That's what i do not understand. If you are a full time employee, the contract would specify the start date of your employment. Then, after the start date, you are getting paid regardless if you are assigned to a specific project or not (unless you agreed to start working from later date)

        Based on your description, you seem to be a contract worker, as contractors are often tied to specific project. However, you are saying you are employed.

        Does your contract say you are an employee? Or Contractor?

        • Quantumcat on 09/02/2022 - 07:57

          Consultants work full time for a consultancy and get sent to the consultancy's clients to work. The consultants behave like contractors at the client but are employed full time by the consultancy.

          • Summoner on 09/02/2022 - 08:44

            @Quantumcat: Thanks for the explanation.

            I was more focused on the fact that he said that he was employed 5 months ago, but work has not started yet and receving no wages.

            When employee receives a job offer and sign a contract, it usually specify start date. The start date may be delayed if both party agrees, but 5 month is long time, and i doubt op was even asked about the delay.

            You cannot simply hire someone and not pay them until you have the project to assign. However, if op signed as an independent contractor, thats a different story.

            So i was not sure if op signed employment contract or independent contractor contract.

            • Quantumcat on 09/02/2022 - 08:46

              @Summoner: He didn't say he'd not been receiving any wages (or I missed it).

              • Summoner on 09/02/2022 - 08:58
                +1

                @Quantumcat: It seems it was a big misunderstanding on my part. I just assumed he was not getting paid as he is keep saying the employer did not put him on account until now (after 5 months), and due to the fact he was looking to sign up with another job.

                So… op is having the free time with wages and looking for a second job since he has time?? That did not even crossed my mind…

                Anyway, thanks for the clarification, that explains a lot…

                • Quantumcat on 09/02/2022 - 09:17
                  +1

                  @Summoner: Yeah, if I were him I wouldn't be posting publicly, I would be enjoying two full time wages and banking all the money away in my mortgage or somewhere else where I couldn't spend it. And hoping it goes on longer! Eventually you would assume he would be put on an account and have to resign from one of the jobs (it is even better when you consider he gets to try the second job for a while and will know if it is worth sticking with [interesting work, nice colleagues, good manager etc])

  • Almost Banned on 09/02/2022 - 00:27

    Outside any restraints in your employment contract there is no reason why you cannot also have a second job.
    However, there are rules about misuse of information or position to obtain a benefit or cause a detriment to your employer (see ss. 182/183 of Corps Act).
    Also, as an employee you have general law duties of good faith and fidelity - including the obligations not to misuse confidential information or compete with your employer.
    Otherwise, go nuts. If your employer is paying you but not actually giving you work to do, good luck to you.

  • raptormesh on 09/02/2022 - 00:50
    +2

    So what's going to happen if they put you on an account tomorrow?

    I am considering if it is a possibility to receive salary X and salary Y until employer X realises that I still exist. <— this is sus.

    Shouldn't there be a clause on moonlighting in the contracts?

  • djkelly69 on 09/02/2022 - 00:52
    +3

    Have fun, F the haters.

  • trustnoone on 09/02/2022 - 01:05
    +6

    Employer X has forgotten about me, is it illegal to receive a salary from employer X and Y?

    I think you wrote this oddly?

    I think what you should be saying is "I have a current job with employer X but they give me basically no work and don't care about me, can I work at employer Y as well considering there's no issue in the contract of me having multiple jobs". As this case I would say yes (I'm not a lawyer) many people work multiple jobs and its employer x fault if they want to employ you and not give you anything to do.

    The way your question sounds like though, is that you are NOT supposed to be employed by Employer X but they're still giving you money while you get more money at Employer Y. This would obviously get you in trouble and they could come after you for that money.

  • kfcfatfat on 09/02/2022 - 01:31

    Are you Milton from Office Space?

    • Slurped on 09/02/2022 - 08:56

      Set the building on fire

  • tio on 09/02/2022 - 01:45

    There are people out there with 2 or more jobs at the same time, so that's normal. However, just make sure both of your contracts with X and Y allow you to work for the other. If the arrangement can be found as a breach of either contracts, X or Y is entitled to exercise their options available under the respective contract and relevant laws.

  • KaTst3R on 09/02/2022 - 02:00
    +1

    If you checked the contracts and there is no moonlighting or competition clause…

    Enjoy…

  • SBOB on 09/02/2022 - 06:16
    +2

    Employer X have repeatedly told me they will put me onto an account

    Should probably start working on that Penske file

    • Almost Banned on 09/02/2022 - 12:08

      Just make sure you take the smaller office.

  • pjetson on 09/02/2022 - 07:49

    Have you formally resigned from Company X? Or are you just going to keep taking their "money-for-nothing" and start working for Company Y? Is there a reason why you're not wanting to do the "right thing" here?

  • djones145 on 09/02/2022 - 08:00

    some people do have two jobs
    like work mon-fri and weekends on another
    or even day and night

    not illegal

    if you are being paid by employer x and not work and getting paid thats a problem
    if they have set up an account and wil bill you once you complete work, then if you can complete it while you are working for employer Y (say at night or on weekend) no reason why you can keep both! if they are all WFH
    as long as both employer dont have some restriction of trade (which doesnt really hold up in court well)

  • Domingo on 09/02/2022 - 09:17
    +2

    Broadly speaking, there is nothing wrong with holding two jobs as long as you aren't breaching the terms of your contract with either employer.

    This could occur in a number of ways:

    1) Working for competitors against a restraint of trade clause in your contract
    2) Holding a second contract where the work hours are explicitly mentioned and overlap. If your current role defines standard work hours (commonly this would be 8:45 - 5:15 with a break for lunch) and your new role also occupies that time, then you are unable to fulfil your obligations to your current employer
    3) Using IP or technology assets that belong to one employer to work for another/profit yourself. You may have something in your contract about the ownership of intellectual property developed while working or while using company assets, and permitted use of company assets. If that is the case, you may find yourself in a sticky legal situation. eg. are you using a laptop provided by employer X?

    If you are currently being paid despite being on client work for employer X, it sounds like you are "on the bench". Typically while on the bench you are expected to contribute to practice development activities - be that doing training courses, improvement of internal processes, development of bids or development of products and IP. As a new employee in the time of WFH it's possible (although unlikely) that you've been overlooked for such things or have actively avoided them, however if you are being paid (which you haven't explicitly stated either way although it sounds like you are), then your employer has an expectation that you are available to do work and are doing work for them during your work hours.

    If your frustration is at employer X for not putting you on work and you think employer Y would, a better solution would be to resign from employer X and take up a position with employer Y. Continuing to draw a salary from exployer X while starting a new job with employer Y could probably be classed as fraud. Also note that if you have generated 5 months worth of cost for employer X while not doing any client work, your utilisation metric is going to be 0% and you are going to get a bad performance review, and likely performance managed out anyway. It is somewhat surprising that your current employer didn't take the opportunity to cease your employment at the end of your probation period, unless your probation period is 6 months rather than 3 and this is something they are still considering. At the end of the day, consultancies are businesses that operate by selling the time of their people and if their people aren't being sold, the consultantcy loses money.

  • GG57 on 09/02/2022 - 09:54
    +2

    IMO, if you remain available for X to allocate you to a project, you can still claim that salary.
    In parallel, if your work with Y is not competitive to X, you should be ok.
    But:
    - If X allocates you to a project, you will need to resign from one of the jobs.
    - You can only claim one income as a primary source of income for Tax purposes. As long as that is in place with either X or Y, you should be ok. The PAYG tax deductions from your income on the non-primary will be subject to different tax treatment.

    • Quantumcat on 09/02/2022 - 10:13
      -1

      You can only claim one income as a primary source of income for Tax purposes. As long as that is in place with either X or Y, you should be ok. The PAYG tax deductions from your income on the non-primary will be subject to different tax treatment.

      Or, just keep most of the other salary banked away somewhere so you can pay the tax bill you'll get

      • GG57 on 09/02/2022 - 10:58

        New employees are required to submit the following:
        - Tax file number declaration
        - Withholding declaration
        - Medicare levy variation declaration.

        I'm sure there are penalties for false declarations.

        • Quantumcat on 09/02/2022 - 11:04

          The only relevant thing is ticking the box if you are claiming the tax free threshold for this employer. If he did, they won't take out enough tax and he'll get a tax bill

  • whitelie on 09/02/2022 - 10:13

    Will you not get taxed to the wazoo on the second job?
    I mean if one income is essentially for doing nothing, its probably not such a big issue but still, sounds like it will be a bit of a mess when they actually give you something to do and expect you to be able to do it immediately. Or do you intend on quitting on the spot, with no notice when they do so? lol

    • dasher86 on 09/02/2022 - 14:45
      +1

      I never get why people are against getting taxed more.
      If you're getting taxed more it means you're making more income.
      60% is of something still better than 100% of nothing.
      You want to maximise your income and also maximise your allowable deductions.

      • whitelie on 09/02/2022 - 14:51
        -1

        I guess if you're limited in the hours you can work or income you can earn in one position then a second job at a higher tax rate can still be beneficial but if the option is there to work more hours/OT in the current job at a lower tax rate, that makes more sense to me

        • dasher86 on 09/02/2022 - 14:55

          But the second job income is not taxed at a higher rate compared to over time.
          Pay income is taxed at the same rate incremental rate at the end of the day, all that changes is your PAYG with-holding and even that should get adjusted for OT.

  • Porker on 09/02/2022 - 11:44

    When OP says 'waiting to put me on the account', what does that mean?

    Is it case that you are employed by Company X, but the book-keeping/accounting aspect needs to be updated? OR you don't have any employment contract of any kind and they're paying you while they get that contract ready?

    If you are employed by Company X, most employment contracts will state that you're not allowed to work for another company and/or work elsewhere during time when you're meant to be working for Company X.

    If it's the situation that you are employed by Company X, but working for Company Y when not meant to be, then they'll likely be entitled to take action against you under the terms of the employment contract.

  • dasher86 on 09/02/2022 - 14:58

    Broadly speaking it wouldn't be 'illegal' unless you get charged with a criminal offence.
    It could mean that you are in breach of your contract and sued for breach of contract.
    It would also be a good idea to check the employers terms and conditions of employment which is usually an addendum to the actual contract itself.

  • Webber000 on 09/02/2022 - 19:53

    Are you saying you have not done any real work for nearly 5 months (or that you have just been doing odd stuff and haven't been given a big project yet)?
    There are plenty of examples around the world of this situation and eventually it never works out well for the person. I recall a story last year about an Italian who had not been going to work for 15 years and was still getting paid. I vaguely recall he worked for a hospital and ended up in prison!? He went off sick, then his boss left, and he chose to just not contact the new boss and they never asked.
    If you're seriously thinking of this then you need to keep in contact with your original company so that its clear you are still available to work (thus justifying them paying you - they clearly seem happy with the current arrangement about paying you to do nothing/little as they seem to think they will need you soon but the point is thats their choice). If you loose contact with them then you are complicit and if you then take up another job which means you clearly could not do both jobs (IE both require you to work 9-5) then that turns to be you defrauding them.
    Only consider taking the second job on if you could genuinely handle working for both.

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