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Covertly applying for a job with an employer's client didn't breach an employee's contractual restraint, but it was nonetheless misconduct that warranted her dismissal, the Fair Work Commission has found.

The employee took "active steps" to ensure the employer wasn't aware of her plans, and in doing so breached her implied duty of good faith and fidelity, Deputy President Thomas Roberts said.

In unfair dismissal proceedings, the Commission heard construction company CBK NSW had started a formal performance review process with the account manager and team leader in March this year.

In May, on the same day the employer issued her first formal performance warning, the employee also received a job offer from one of the employer's clients.

She then told the employer she was "thinking about applying" for a position with the client...