The recent Labour Court judgment in Vilakazi v Commission for Conciliation, Mediation and Arbitration and Others ([2023] ZALCJHB 319) has reinforced the principle that full-time employees owe a fiduciary duty of good faith to their primary employer. Dr. Sibongile Vilakazi, a full-time lecturer at the University of the Witwatersrand, learned this lesson the hard way when she was dismissed for gross misconduct after taking up full-time employment with another company without informing or obtaining approval from the university. Her dismissal was upheld as both substantively and procedurally fair.
What Is Moonlighting and Why Is It a Problem?
Moonlighting refers to an employee holding an additional job outside of their primary employment, often without their employer’s knowledge or consent. While South African labour law does not outright prohibit moonlighting, it recognises that it can create a conflict of interest, impact work performance, and breach an employee’s fiduciary duty to their employer.
In Vilakazi’s case, she was employed full-time by the university while also accepting a full-time position at Kantar South Africa (Pty) Ltd. The employment contracts for both positions required full commitment, making it virtually impossible for her to meet her obligations to both employers effectively. Importantly, the university had a clear policy requiring prior approval for any outside work, which Vilakazi failed to obtain.
Legal Principles Reinforced by the Labour Court
The Labour Court reaffirmed several key legal principles:
Fiduciary Duty- Employees have a duty of good faith toward their employer, which includes disclosing potential conflicts of interest. Failure to do so can justify dismissal.
Employer’s Right to Manage Risk- If an employee’s outside activities pose a potential risk to the employer’s interests, the employer has the right to take action, including termination.
Substantive and Procedural Fairness- The court found that the CCMA arbitrator had reasonably determined that the dismissal was fair. The applicant’s refusal to acknowledge any wrongdoing further weakened her case.
Policy Compliance- Employment policies, particularly those regarding conflicts of interest, must be followed. Employers are entitled to expect employees to familiarise themselves with workplace policies and comply with them.
Lessons for Employers and Employees
For employees, this case is a reminder that failing to disclose additional employment can result in dismissal, particularly where it creates a conflict of interest. If you are considering taking on extra work, check your contract and company policies first. Employers, on the other hand, should ensure that they have clear policies on moonlighting and conflicts of interest. These policies should be communicated effectively, and enforcement should be consistent to avoid claims of unfair treatment. It should however be noted that the absence of a policy does not mean an employee can engage in moonlighting- the duty of an employee is always to maintain good faith and trust toward the employer, and prior application for consent/ approval is always recommended.
Need Legal Advice on Employment Matters?
If you need guidance on workplace policies and employment contracts, Spence Attorneys can assist. Contact us today for advice at info@spencelaw.co.za
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Seek professional assistance for specific legal concerns.
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