Employees in South Africa must be careful when moonlighting (working two jobs), as an employer may see it as a fireable offence.

According to Mpumelelo Nxumalo from Webber Wentzel, the duty of good faith and the implications of moonlight for employees was seen in a recent Labour Court judgement.

In the matter of Vilakazi v CCMA and others (JR164/20) [2023] ZALCJHB 319 (3 November 2023)], an employee was employed on a part-time basis at both the University of Witwatersrand (Wits) and Alexander Forbes. However, they resigned from the latter to become a full-time employee at Wits.

However, the employee soon took up full-time employment with Kantar.

The Univerisity had a Declaration of Interests policy, which included definitions on “conflict of interest“, “financial interest” and “moonlighting“. The form is then submitted to the Vice-Chancellor, who has the discretion to allow or not allow for a conflict of interest or moonlighting.

The employee did not disclose to the office of the Vice-Chancellor her intention to work full-time with Kantar, but her extracurricular was discovered.

She was then found guilty of gross misconduct and dismissed, which she challenged at the Commission for Conciliation, Mediation and Arbitration (CCMA).

After the CCMA found against the employee, she then launched a review application at the Labour Court.

“At the Labour Court, the employee argued, based on her subjective assessment, that she could manage the two positions. Moreover, that she did not think it would prejudice the University and she saw no conflict of interest,” Nxumalosaid.

“The Labour Court held that objectively a conflict of interest or at least a very real risk of a conflict of interest to the prejudice or potential prejudice of the University existed. Upon assessing the employee’s obligations to her respective employers, the Labour Court remarked that the employee would need to show ‘superhuman abilities‘ to discharge her obligations under both contracts, which was not ‘humanly possible‘.”

In addition, the Labour Court said that the employee was paid more at Kantar than at Wits, which places her loyalty to the tertiary institute in question.

However, even without a policy, Nxumalo said that the employee had a fiduciary duty to Wits to report her intentions and seek approval from the office of the Vice-Chancellor before even taking up employment with Kantar.

The Labour Court thus ruled against the employee and found that her conduct was amounted to moonlighting.

“The Labour Court held that moonlighting as a matter of principle is unacceptable, and a breach of an employee’s fiduciary duties towards the employer. It must always be the sole prerogative of an employer to decide whether to allow this to take place, and also on what terms it may be allowed,” Nxumalo said.

“Nothing can be assumed by the employee. That is why full disclosure must be made by the employee to the employer beforehand, so the employer can exercise its prerogative in an informed manner. To disclose 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.

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