It is a sad reality that South Africa’s economy is extremely constrained, and that South Africans are facing significant challenges every day just to make ends meet. With the rising costs of living, and an economy which simply does not support the high increases to remuneration that were the norm a few years back, it is understandable that employees are considering their options including so-called “moonlighting” – taking up other work opportunities to make more money.
The key principle and requirement, to avoid adverse consequences from “moonlighting”, is to let the employer know, and get consent. This was re-confirmed in the recent Labour Court Judgment in the matter between Dr Sibongile Vilakazi and the Commission for Conciliation, Mediation and Arbitration / University of Witwatersrand (the Vilakazi Judgment).
Dr Vilakazi was initially employed by Wits University on a part-time basis, but was subsequently offered full-time employment, which she accepted. The contract of employment contained a standard clause requiring her to obtain approval from Wits University for any “moonlighting”.
During her employment with Wits University, Dr Vilakazi took up full-time employment with another employer, without obtaining consent from Wits University.
Dr Vilakazi was disciplined, and subsequently dismissed for “moonlighting” without obtaining approval from Wits University.
The court held that “moonlighting” is, as a matter of principle, unacceptable, and it is a breach of an employee’s fiduciary duties towards their employer. In these circumstances it must be solely within the discretion of an employer to decide whether to allow this to take place and if so, under what terms.
The Labour Court was extremely critical of Dr Vilakazi, and her dismissal was upheld.
In addition to there being a contractual requirement to obtain authority from Wits University, the Labour Court appeared to indicate that “moonlighting”, without the consent of the employer, is generally unacceptable.
While it may be understandable that employees try to generate more income, “moonlighting” must be discussed with the employer and the consent of the current employer must be obtained.
Within the context of workplace health and safety, it is also vital that “moonlighting” does not impact on the ability of an employee to carry out their duties and responsibilities safely, and that it does not contribute to fatigue.