Moonlighting is the act and/or practice of holding a second job or engaging in additional work outside of your regular employment, without informing your employer. With the prevailing cost of living crisis in South Africa attributed to, inter alia, inflation, it is common practice for individuals to have more than one source of income to survive.
However, as an employee and in the absence of an agreement to the contrary, one owes one’s employer a duty of good faith, by disclosing material activities that may result in a conflict of interest. This duty entails that as an employee, you are obliged not to work against your employer’s interests, and not to place yourself in a position where your interests are conflicted with those of your employer.
In the matter of Bootes v Eagle Ink Systems KwaZulu-Natal (Pty) Ltd, the Labour Court stated that “good faith requires employees to work honestly and faithfully, to work in and not against the employer’s interest, to avoid conflicts between their own interests and those of their employer and not to derive a secret profit for themselves.”1
Such contractual obligation could result in one’s dismissal by their employer, more especially if holding a second job, or engaging in additional work outside of one’s regular employment conflicts with one’s current job.
In the case of Bonfiglioli SA (Pty) Ltd v Panaino , the Labour Court stipulated that “at common law, the employee owes the employer a duty of good faith.”2 In the case of Ganes & Another v Telecom Namibia Ltd, it was stated that “the duty of good faith entails that an employee is obliged not to work against the interests of his/her employer and not to place himself/herself in a position where his/her interests conflict with those of the employer.”3 It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, contrary behaviour entitles the employer to cancel the agreement.
Moonlighting may present several challenges, such as, conflicts of interest, a lack of focus resulting in a lack of productivity in the main employer’s business, the risk of burnout, poor time management, and legal implications.
In the matter of National Union Of Metalworkers of SA and Another v Commission for Conciliation, Mediation and Arbitration and Other, the Court held that “an employee is obliged to act to protect the interests of the employer and where an employee fails to do so and the failure constitutes serious misconduct, the sanction of dismissal will be fair, as an employer is entitled, as an operational imperative, to rely on its employees to act in good faith and to protect the interests (which include property) of the employer. In such a case, dismissal becomes an operational imperative and way of managing risk.”4
In essence, what the Courts take into consideration when the issue of moonlighting arises is firstly, whether there is an agreement or policy in place, within the company which prohibits moonlighting. Should such an agreement or policy exist, the Courts shall assess what the parties agreed upon and make a decision based on the breach of said agreement. In conjunction with such agreement (and even in the absence of an agreement), the Courts also take into consideration the issue of good faith.
Therefore, moonlighting, as a matter of principle, is unacceptable, and a breach of an employee’s fiduciary duties towards their employer. It must always be the sole prerogative of an employer to decide whether to allow this to take place, and on what terms it may be allowed. The employee can assume nothing; it is vital for the employee to exercise transparency, and make full disclosure to the employer beforehand, so the employer can exercise its prerogative in an informed manner.
To make disclosure to an employer after the fact effectively confronts the employer with a fait accompli, and cannot undo the breach of the duty of good faith that has already taken place.5 There is only one way which one can validate such practice, and that is by the free consent of the main employer following upon a full disclosure by the employee. Upon disclosure, only the employer can assess and determine what may constitute a conflict of interest that places its own interests at risk, having due regard of all the interests of the employer.
With the complexity of our South African labour laws, as an employee or employer, seek legal assistance from our legal experts at Tshaya Mashabela Attorneys.
Authors: Tumelo Mashabela | Director and Bonga Dlulisa | Associate Attorney
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