Moonlighting – can an employee have two jobs at the same time ?

In a judgment handed down by the Labour Court on 3 November 2023  [ Vilakazi v Commission for Conciliation, Mediation and Arbitration and Others (JR164/20) [2023] ZALCJHB 319 (3 November 2023)], the Court dealt with whether the dismissal of an employee was fair where the employee held two jobs simultaneously but in circumstances where the employee felt that she could manage both jobs, and where she saw no conflict of interest.

The employee was initially employed by the University of the Witwatersrand in its Wits Business School (WBS) as a part time lecturer. The employee was at the same time also employed at Alexander Forbes.

The employee later resigned from Alexander Forbes, because she opted to take up full time employment as a lecturer in the WBS ( WBS).

In the employment contract with WBS, the employee agreed and undertook to familiarize herself with all policies, rules and regulations applicable to all permanent academic staff. Her duties included teaching, examining, researching / scholarly work, as well as general administrative duties.

Included in these policies was a Policy on the Declaration of Interests (the Policy). In the preamble of the Policy, it is recorded that the adoption of the Policy was essential as it became apparent that there were regular occurrences of academic staff taking up outside interests which could conflict with the interests of the University and/or detrimentally affect the performance and/or professional duties of such academic staff.

A ‘conflict of interest’ in terms of the Policy was defined as a conflict between the private interests (financial, personal or other) and the official responsibilities of a staff member. ‘Financial interest’ was defined as, inter alia, the payment for services rendered, directorships and intellectual property rights. There was also a specific definition for ‘moonlighting’, which reads: ‘taking up additional employment, which may require time investment that may impede a staff member in meeting his or her contractual obligation to the University’.

Two particular provisions of the Policy were relevant.
The first being that staff members were required to declare their interests as contemplated by the Policy by completing and submitting a prescribed form to the relevant human resources manager. The second being that any involvement in any external institutional affairs, including moonlighting, had to be approved by the Vice-Chancelor’s office.

Very soon after taking up permanent employment with WBS, the employee simultaneously also took up employment with Kantar South Africa (Pty) Ltd (Kantar), as accounts director, on a full-time employment basis.

Although it was accepted that what the employee did in this case was ‘moonlighting’ as defined in the Policy, the question at hand was whether the failure to disclose the external employment to the Vice-Chancellor constituted not only a breach of the Policy but also a violation of the duty of good faith ( ie. a fiduciary duty) that the employee had towards the University.

The employee’s defence was that based on her own subjective assessment, the employee could manage the two positions; that she did not think it would prejudice the University, and she saw no conflict of interest.

The Court found that the employee’s own subjective views, cannot exonerate her. She was obliged, even despite the Policy itself, in terms of the fiduciary duty she owed to the University as her employer, to report her intentions and seek approval.

By acting as she did, the employee violated her duty of good faith towards WBS which constituted gross misconduct. In simple terms, moonlighting as a matter of principle is unacceptable and constitutes a breach of an employee’s fiduciary duties towards the employer.

The Court concluded that it is the sole prerogative of an employer to decide whether to allow moonlighting to take place, and also on what terms it may be allowed.

The learning from this judgment for employees is that they should be extremely cautious to not breach their duty of good faith to their employer.

Employers on the other hand need to remain mindful that even if their appears to be a breach of the duty of good faith owed by an employee, that a fair disciplinary hearing needs to be conducted, because dismissing an employee may still be regarded as unfair, despite the presence of a breach of good faith, if a fair process is not followed.