Moonlighting – a cause for dismissal?

Moonlighting is by definition when an employee also works for another employer and in effect offers his/her services to two employers at the same time, or conducts his/her own business for personal gain whilst employed. Dismissal may be warranted when an employee’s second job interferes with his/her work, or when a definite conflict of interest arises, which creates prejudice or a real risk to the employer’s business. Employment contracts and company policies should make provision for a clause that prohibits moonlighting and situations where risk and conflict of interest may arise. When an employer finds an employee to be moonlighting and this is not prohibited in writing by the employer, the employee cannot be legally accused of having broken the trust relationship merely by moonlighting. The courts consider the following elements when deciding whether an act of moonlighting has broken down the trust of an employment relationship:

• dishonesty;
• whether lost trust can be mitigated; and
• whether the employee willfully caused damage to the employer’s business.

Moonlighting has the potential of depriving an employer of the employee’s full attention and skilled services. This being said, employees cannot be unreasonable kept from earning an extra income from an external source where the intention of the employee is purely to supplement his/her income, provided that the employer was asked for permission.

Therefore it is of the utmost importance that moonlighting is regulated in any workplace.

Rules with regards to moonlighting need to be implemented in writing, ensuring that employees are aware of the consequences if contravened. Persuasive evidence such as the employment contract and existing rules with regards to moonlighting, are therefore of the utmost importance during disciplinary action.

Contact the LWO at 0861 101 828 for more information about how to use labour legislation to your benefit in the drafting of employment contracts as well as policies and procedures.