Recently, the Acting Miss Vilakazi (the employee) commenced her employment at the University of the Witwatersrand (Wits) in 2017 as a part-time lecturer and also worked at Alexander Forbes. In 2018, the employee became a full-time lecturer at Wits and subsequently resigned at Alexander Forbes.
Due to permanency of the job at Wits, the employee had to familiarise herself with the policies and regulations applicable. The policy in question was the Policy on the Declaration of Interests (the Policy). This Policy contained clauses relating but not limited to conflict of interest and moonlighting.
The employee while permanently employed at Wits took up a permanent position at Kantar South Africa (Pty) Ltd (Kantar) of which she did not disclose to Wits. Kantar was paying her R 36 000 more than what she earned at Wits.
Wits became aware of the employee’s conduct and acted through disciplinary measures.
The Policy defines moonlighting as –
‘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’.
The Policy stipulates an ‘employee is required to approach the Vice Chancellor’s office for approval of any external institutional affairs, including moonlighting’ (Jacques van Wyk ‘The downside to a side hustle – moonlighting, conflicts of interest and the law’ (www.werksmans.com, accessed 3-4-2024)).
According to the Policy, an employee must get permission from the Vice Chancellor’s office before engaging in any external institutional activities, such as moonlighting.
This indicates that while the policy does not specifically forbid moonlighting, it does require employees to get approval from the Vice Chancellor of their desire to pursue additional employment.
The Vice Chancellor would then have a discretion to authorise additional employment in combination with its own functioning requirements.
The employee was notified to attend a disciplinary inquiry, which was scheduled to take place on 4 February 2019. The charge that was preferred against her:
‘Gross misconduct in that you took up full time employment at Kantar South Africa (Pty) Ltd whilst still in the full-time employment of the University without the knowledge or authority of the University. Your conduct was to the prejudice or potential prejudice of the University’.
Wits’ version was that the employee took up full time occupation with another employer and failed to disclose to the Vice Chancellor. This act by the employee was against the Wits Policy, and introduced a conflict of interest, which resulted in prejudice to Wits and equated to gross misconduct.
On the other hand, ‘the employee argued that she could manage both full-time positions and that she saw no conflict of interest’ (van Wyk (op cit)).
The employee was found guilty by an independent chairperson and subsequently dismissed. ‘Aggrieved … , she referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA)’ (Nomampondo Banzi and Siphile Hlwatika ‘Thinking about moonlighting or having a “side hustle”? Think twice…’ (www.ensafrica.com, accessed 3-4-2024)).
At conciliation the matter was unresolved and went for arbitration. During arbitration most evidence was common cause. The employee did not dispute working for Kantar on a full-time contract and not disclosing this information to the authorities of Wits. She further said she had not done anything wrong and maintained she could manage both occupations. The Commissioner in her award mentioned that the employee resigning from Alexander Forbes was indicative that she is aware of the terms of the policy.
The Commissioner said the employee could not work two full time jobs as it was humanly impossible. Moreover, the two contracts could not practically exist together. The Commissioner went on to say that despite the Policy, the employee was required to submit her intentions and obtain approval from the Vice Chancellor’s office before even starting work with Kantar, as per her fiduciary duty to her employer, under the provisions of her employment contract.
The Commissioner ‘found that the employee’s dismissal was both procedurally and substantively fair’ (van Wyk (op cit)).
‘The employee, dissatisfied with the arbitration award, approached the Labour Court to review and set aside the Commissioner’s arbitration award’ (van Wyk (op cit)).
On review this court held that the employee’s engagement in moonlighting, which violated ‘the policy and her fiduciary duties’, was common cause (van Wyk (op cit)).
This court was of the view that the employee could not take up two full time contracts based on their mutual incompatibility and inability to coexist.
The court said that employees have a fiduciary duty to their employer to behave in its best interests. Employees must always act in good faith, as the foundation of a work relationship rests on trust and confidence.
The court determined that when there is a violation of good faith, and the employer-employee relationship is severely damaged that dismissing the employee is the only reasonable sanction.
This court determined that an employee cannot on their own accord establish if a ‘conflict of interest in the form of moonlighting has occurred’ (van Wyk (op cit)). The test is not subjective.
This court added that it is the employer that decides when and under what conditions moonlighting is allowed.
The non-disclosure by the employee equates to a mockery of the Policy and deprives the employer a chance to consider the employee’s desired further employment.
‘The Labour Court dismissed the employee’s review application and held that her dismissal was both procedurally and substantively fair’ (van Wyk (op cit)).
It is clear from this case that moonlighting without the employer’s permission risks instant dismissal. Notably, in this case the employee took up two full time contracts whereas in most moonlighting cases the additional employment contract is usually part time. Be that as it may, in all instances the employer must be made aware.
An employee under the belief that they can manage both employment contracts does not take away the fact that additional employment must be disclosed. Disclosing additional employment after the fact becomes irrelevant as it hinders the employer from evaluating the possibility and overall effects of a conflict of interest.
The court emphasised that even if policies and rules do not speak to disclosure of moonlighting to prevent a conflict of interest. An employee is expected to disclose employment with a third party.
Employers must ensure that they have clear policies in place and control measures to prevent unauthorised moonlighting. A policy on its own is not sufficient. Regular monitoring and management process over such policies are vital.
Phumzile Penelope Ziqubu LLB (UKZN) is a legal official in Johannesburg. She writes in her own capacity.
This article was first published in De Rebus in 2024 (May) DR 42.
