In recent legal developments, the Labour Court of South Africa highlighted the significant repercussions of moonlighting, or holding concurrent employment, especially in cases where employees fail to disclose their secondary work engagements to their primary employers. This issue came to light in the case of Vilakazi v CCMA and others, shedding light on the obligations and fiduciary duties of employees in South Africa’s workforce.
Mpumelelo Nxumalo, a legal expert from Webber Wentzel, emphasized the crucial interplay between the duty of good faith and the implications of moonlighting for employees, underscoring the recent Labour Court judgment’s implications.
The case revolved around an employee initially working part-time at both the University of Witwatersrand (Wits) and Alexander Forbes. However, the individual resigned from the latter to accept a full-time position at Wits but subsequently took up a full-time role at Kantar without disclosing this to the Vice-Chancellor as required by the University’s Declaration of Interests policy.
The Declaration of Interests policy at the University encompassed definitions of terms such as “conflict of interest,” “financial interest,” and “moonlighting.” This policy necessitates employees to submit a form outlining their secondary work engagements to the Vice-Chancellor, who holds discretion in approving or disallowing such activities that might lead to a conflict of interest.
The employee’s failure to disclose their intention to work full-time at Kantar led to a discovery of this extracurricular engagement, resulting in the individual being charged with gross misconduct and subsequently dismissed. This dismissal was contested at the Commission for Conciliation, Mediation, and Arbitration (CCMA).
Upon the CCMA’s ruling against the employee, a review application was filed at the Labour Court, where the employee defended their actions based on a subjective assessment, claiming they could manage both positions without prejudicing the University and denying any conflict of interest.
However, the Labour Court objectively assessed the situation and found a significant risk of conflict of interest that could potentially prejudice the University. It was stated that managing obligations under both employment contracts simultaneously would require “superhuman abilities” beyond human capacity.
Furthermore, the discrepancy in compensation, with the employee receiving higher pay from Kantar than Wits, raised concerns about loyalty to the tertiary institute.
Mpumelelo Nxumalo highlighted that even without a policy explicitly outlining secondary employment, employees hold a fiduciary duty to report their intentions to their primary employer before engaging in any additional work. Failure to seek approval or disclose intentions constitutes a breach of this duty.
The Labour Court’s verdict emphasized the principle that moonlighting is fundamentally unacceptable, constituting a breach of an employee’s fiduciary duties towards their employer. It asserted that the decision to permit moonlighting rests solely with the employer, contingent upon their terms and conditions.
Nxumalo stressed the importance of full disclosure by employees to their employers beforehand to enable informed decisions regarding such engagements. Disclosing after the fact essentially presents the employer with a fait accompli, unable to rectify the breach of the duty of good faith that has already occurred.
This case underscores the gravity of moonlighting for employees in South Africa and the necessity of transparent communication between employees and employers regarding additional work engagements. It serves as a vital precedent highlighting the legal and ethical obligations incumbent upon employees in managing multiple work commitments while maintaining fidelity to their primary employer.