CASE LAW - EXPLORING THE CONCEPT OF MOONLIGHTING IN THE PROFESSIONAL SPHERE

Moonlighting, a term denoting an employee's engagement in secondary employment while maintaining a primary job, poses multifaceted considerations within professional contexts. Employee moonlighting refers to the practice of an employee holding more than one job simultaneously. Typically, this involves having a full-time position with one employer while also working part-time or on a freelance basis for another employer or engaging in self-employment activities. However, the term can broadly apply to any scenario where an individual works for multiple employers concurrently.

Moonlighting can occur for various reasons:

Financial Need:

The additional income from a second job can help employees meet financials or achieve financial goals more quickly.

Skill Development:

Some employees may take on a second job to gain experience in a different industry or to develop skills that their primary job does not provide.

Personal Fulfillment:

Moonlighting can also be driven by personal interests or passions that an employee wishes to explore outside of their primary job.

Career Advancement:

In some cases, moonlighting may provide opportunities for career advancement, such as gaining experience in a different role or industry that could lead to future job opportunities.

Entrepreneurship:

Employees may engage in moonlighting to start their own business or venture on the side while maintaining stability through their primary job.

Employers generally have varying policies regarding moonlighting. Some may prohibit it outright due to concerns about conflicts of interest, reduced employee productivity, or potential legal liabilities. Others may allow moonlighting but with restrictions, such as ensuring that the second job does not interfere with the employee’s performance or responsibilities at their primary job.

From an employee's perspective, it's important to consider:

• Time Management: Balancing multiple jobs requires effective time management skills to ensure that responsibilities are met at both positions.

• Legal and Contractual Obligations: Reviewing employment contracts, non-compete agreements, or policies related to moonlighting to avoid any conflicts or breaches.

• Ethical Considerations: Maintaining transparency with all employers and ensuring that moonlighting activities do not create conflicts of interest or harm the primary employer’s interests.

Overall, while moonlighting can offer benefits such as supplemental income and skill diversification, both employees and employers should approach it thoughtfully to mitigate potential risks and ensure compliance with policies and legal considerations.

The Labour Court recently [in the matter of Vilakazi v CCMA and others (JR164/20) [2023] ZALCJHB 319 (3 November 2023)] considered the principles relating to conflict of interest in the context of moonlighting. In this instance, the employee was employed by the University of Witwatersrand (the University) in its business school division, initially as a part-time lecturer. The employee was also employed at Alexander Forbes on a part-time basis but later resigned from Alexander Forbes to take up full-time employment with the University. The employee thereafter also immediately took up full-time employment with Kantar South Africa (Pty) Limited (Kantar). The employee’s working hours at the University were in accordance with the Basic Conditions of Employment Act and her working hours at Kantar were office hours, Monday to Friday, at least 37,5 hours per week.

The University’s Declaration of Interests policy (the policy) specifically defines "conflict of interest“, “financial interest” and “moonlighting“. The policy also outlines that employees are required to declare their interests by completing and submitting a form to the relevant human resources manager on 28 February every year. The form would in turn be submitted to the Vice Chancellor’s office for consideration. The Vice-Chancellor would then have the discretion to allow or not allow any conflict of interest disclosed. The policy also provides that involvement in any external institutional affairs, including moonlighting, must be approved by the Vice-Chancellor’s office.

The employee did not disclose to the office of the Vice-Chancellor at the University her intention to take up full-time employment with Kantar. Her extra-curricular activities were however discovered by the University, and she was notified to attend a disciplinary inquiry, where she faced a charge of gross misconduct. She was found guilty of the charge and dismissed by the University. The employee thereafter challenged her dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA found against the employee and held that her dismissal was substantively fair. The employee 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, she did not think it would prejudice the University and she saw no conflict of interest. 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“.

The Labour Court also found that the fact that the employee was paid more at Kantar than at the University, placed her loyalties toward the University in question – should there be a case where both employers require specific work to be performed at the same time. 

Even in the absence of the policy, the employee was obliged in terms of her fiduciary duties owed to the University, as her employer under her contract of employment, to report her intentions and seek approval from the office of the Vice-Chancellor before even taking up employment with Kantar.

The Labour Court therefore found against the employee and that her conduct amounted to moonlighting. 

What does the Main Collective Agreement of the National Bargaining Council for Hairdressing, Cosmetology, Beauty, and Skincare Industry say about Moonlighting?

25. PROHIBITION OF PRIVATE WORK

25.1 An Employee, whilst in the employ of an Employer engaged in the rendering of Cosmetology services, excluding Part-time Employees, shall not -

25.1.1 solicit clients or render or undertake to render any Cosmetology services other than instructed by his/her Employer.

25.1.2 be directly or indirectly involved in any way or manner whatsoever in any Establishment without the written permission of the Employer.