What the law says about staff who moonlight
GIVEN the pressing economic times we live in, it’s not surprising that the so-called gig economy is evolving at the pace it is. It is a gig economy in which many choose to hire themselves out on a project basis, from gig to gig. Another way of making ends meet is to simply take on more than one job to keep the family finances in shape. But when does this become “moonlighting” or is it even okay?
The term was first coined in the early 1950s, and was used to refer to someone holding a second job, especially at night, “working by the light of the moon”. The question arises as to whether, or not, an employer has any right to object to an employee holding down a second, or even a third job, while being employed by them.
As a point of departure, it is important to understand that all employees have a duty to serve their employer in good faith. That means a number of things, including an obligation to protect, further and enhance the interests of the employer. It follows that, for example, an employee cannot do so if they work for employer A by day and employer B at night. Both employers would be faced with an employee who is exhausted. It is for this reason that many employers forbid moonlighting, which, by and large, is conducted clandestinely by an employee.
In the Labour Appeal Court case of Sappi Novoboard (Pty) Ltd v Bolleurs (1998-19 ILJ 784), it was held that: “If an employee does anything incompatible with the due or faithful discharge of his duty to his master, the latter has the right to dismiss him.” In the main, it is prudent for employers to prohibit moonlighting, unless of course the employee is not employed, and only working part time (for example mornings only) or on certain days of the week. If the employer elects to forbid moonlighting, it should be clearly incorporated in the employee’s contract of employment and, better still, reinforced in a company policy.
According to the Labour Court judgment in the Martin East judgment, the dismissal of the employee was fair. An employment contract could include such a clause, declaring that: “The employee undertakes during the period of his, or her, employment not to be directly or indirectly engaged in, or employed by, or otherwise associated with, either or on a full-time or part-time basis, any business or organisation or company or corporation or person, whether such activity is of the same or similar business interest as that of (employing company name) (Pty) Ltd, or not.” Such a clause in an employment contract would be valid, and enforceable, in the event that the employee is fully employed. The Labour Court case of Martin East v Bullbring & others (Case number C1051.14) dealt with the question of moonlighting, among other things.
The employer had a clear rule prohibiting moonlighting, yet the employee had facilitated a training workshop for five days for his own account without having sought or obtained authorisation from the employer to do so. To make matters worse, he had been on duty for his employer for at least part of the time he had facilitated the workshop. So, there you have it. Moonlighting cases in our courts are relatively few. However, it is undoubtedly clearly understood that employees have a duty of good faith to their employers, and as such, must ensure that they do not act in a manner that undermines the interest of their employer. If employers object to their staff moonlighting, it is of prime importance that this be recorded in a contract of employment, together with a policy on this prohibition.
In addition, there must be proof that the employee has prior knowledge of the rule prohibiting moonlighting. Moonlighting will not always necessarily justify dismissal, so each case would need to be judged on its own merits.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375 or visit www.tonyhealy.co.za