Moonlighting

Moonlighting is common in South Africa and refers to where an employee holds a secondary job or runs a personal business while employed full-time elsewhere. Especially during financial strain, it offers workers extra income, but poses risks like conflicts of interest and reduced productivity for employers aiming to maintain a fair workplace.

Case law

Under common law, employees have a fiduciary duty to act in good faith, protecting and promoting their employer’s interests. South Africa’s Constitution (section 23) ensures fair labour practices, supported by laws like the Labour Relations Act of 1995. The Labour Court recently clarified moonlighting’s legal standing in Dr Sibongile Vilakazi v Commission for Conciliation, Mediation and Arbitration and Others (2023).

In 2017 Dr Vilakazi took a position as a part-time lecturer at Wits Business School while employed at Alexander Forbes. In 2018 Dr Vilakazi, after resigning from Alexander Forbes signed a contract for full-time employment as a lecturer at the university effective 1 July 2018. On 4 July 2018 Dr Vilakazi, whilst remaining in the employment of the university, also took a full-time accounts director role at Kantar South Africa, which interestingly also paid more than the university. Both employment contracts required her to disclose external work and obtain approval from the respective employers to engage in outside work, which she did not do.  In this specific case before the Labour Court, the employee was mandated/required to obtain the Vice-Chancellor’s approval for external work, including moonlighting, as required in terms of the university’s “Declaration of Interest Policy”, which the employee had failed to do.

The university charged Vilakazi with gross misconduct for her undisclosed Kantar job. After a disciplinary hearing, she was dismissed. She contested this at the Commission for Conciliation, Mediation and Arbitration (CCMA), which upheld the dismissal as fair. Thereafter she referred it the matter to the Labour Court for review of the commissioner’s decision. Vilakazi’s Labour Court review was dismissed, with the court stressing employees’ duty to act honestly and avoid conflicts of interest. Her undisclosed Kantar role risked harming the university, violating its policy. Her claim that she could manage both jobs was deemed irrelevant.

The court held that the commissioner’s findings on the misconduct were justified, and that the conclusion of dismissal was a fair sanction in that case and in the circumstances. The court noted that the employee was a highly educated person and should have known better, and that it is common knowledge that moonlighting during the course of permanent employment is not acceptable behaviour.

Moonlighting

Employers can manage moonlighting by:

• Adding contract clauses requiring permission for secondary work and disclosure of conflicts.
• Setting policies that secondary jobs must not:
  – Contradict the employment contract
  – Harm the employer’s business
  – Impair primary job performance
• Investigating moonlighting during sick leave to assess compatibility with the employee’s condition.

Balancing employees’ rights to earn extra income with business protection is key. For example, if an employee diverts clients to their secondary job, this breaches good faith and may in some instances warrant dismissal. Employers should list such acts as serious misconduct in disciplinary codes.

Without clear contractual provisions or policies, employers may struggle to discipline employees for moonlighting unless it directly affects performance or creates conflicts.

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