Moonlighting is understood to be holding two or more jobs outside of the employee’s main job unusually without the knowledge of the employer. According to the statistics that were released by the Statistics South Africa the annual consumer inflation rate is sitting at 7.0% meaning the CPI is rising more than the rise of salaries which gives many South African the appetite to “moonlight” in order supplement their income.

WHAT DOES THE LAW SAY ON MOONLIGHTING?

At common law - all employees have a fiduciary duty to act in good faith towards their employer. This implies that employees must further protect and enhance their employer’s interests.

The Constitution of the Republic of South Africa (section 23) enjoins everyone the right to fair labour practices and contemplates that national legislation such as the Labour Relations Act 66 of 1995 and Basic Conditions of Employment Act will give effect to such right.

Recently the Labour Court in Dr Sibongile Vilakazi Vs Commission for Conciliation, Mediation and Arbitration and Others (Jr164/20) [2023] Zalcjhb 319 confirmed that moonlighting in South Africa is prohibited.

The facts of this case were that Dr Sibongile Vilakazi (“the employee”) was employed by Wits Business School (“the University”) as a part–time lecturer and was also employed by Alexander Forbes. In 2018 the employee resigned from Alexander Forbes and transitioned to a full–time lecturer position at the University.  

In terms of her employment contract the employee agreed that she will acquaint herself with all the policies pertaining to the permanent staff of the University. In terms of the University’s Declaration of Interest Policy (“the policy”) any involvement in any external institutional affairs, including moonlighting, had to be approved by the Vice-Chancellor’s office.

Pursuant to the employee taking up employment with the university on a full-time basis, the employee also took up full-time employment with Kantar South Africa (Pty) Ltd (“Kantar”) as an accounts director, working office hours Monday to Friday, and earning more than she was earning at the University. A material term in her employment contract with Kantar was that the employee would not directly or indirectly have any business interest of any kind whatsoever, without Kantar’s prior written permission.

The employee did not disclose to the University that she took a full–time employment with  Kantar, neither did she disclose to Kantar that she was employed on a full–time basis with the University. This is despite having agreed to familiarise herself with the University’s Declaration of Interest Policy and obtaining prior approval from the Vice Chancellor’s office should the employee be involved in any external institutional affairs, including moonlighting.

The employee was notified by the University to attend a disciplinary hearing on the charge of  gross misconduct for taking up full-time employment at Kantar while full-time employed by the University without the knowledge or approval of the University. At the conclusion of the disciplinary hearing, the employee was subsequently found guilty of the charge and dismissed by the University.

Thereafter, the employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”). The CCMA concluded that the employees’ dismissal was both substantially and procedurally fair. Aggrieved by the outcome the employee launched the review application to the Labour Court (“the Court”) to review and set aside the CCMA arbitration award.

THE DECISION BY LABOUR COURT

The Court dismissed the review application launched by the employee. Having regard to the common law position and previous decisions on the subject matter, the Court reasoned that an employee is expected to act in good faith towards their employer, serving honestly and faithfully and not working against the employer’s interests.

The Court held further that an employee has a fiduciary duty not to engage in activities that conflict with their employer’s interests. In the present case, it was undeniable that the employee placed the interest of the University at risk when she took up employment with Kantar. Accordingly, the court found that there was a conflict of interest or at least a real risk of conflict of interest to the prejudice of the University.

The Court rejected the employee’s argument that she could manage two jobs and that she had no obligation to report her employment with Kantar to the University.  The Court concluded the employee’s subjective assessment that she could be manage two positions was of no moment because blatantly ignored the University’s Policy prohibiting moonlighting.

NAVIGATING MOONLIGHTING

Having regard to the above it is clear that the essence of being an employee is that you have an obligation to make your services available to the employer during the hours that have been agreed upon. Furthermore, employees ought to guard against being conflicted to an extent that the conflict of interest prejudices their employer.

In terms of our Constitution everyone has a right to work, essentially an employer cannot prohibit an employee form of work, which implies that the employee is free to pursue his or her own commercial interests outside of working hours. However, employees have a duty to act in good faith towards their employer. If a breach of the duty of good faith has been established, it would inevitably have detrimental effect on the employment relationship. In turn, the breach would normally amount to serious misconduct.

In conclusion next time you think of moonlighting think twice.

Written by Wandile Moeketsane: Director (Employment Law) & Itumeleng Papo: Senior Associate (Employment Law); Rams Attorneys