25 November 2022
Is it defined in your company’s policies and procedures? Are employees allowed to hold two jobs simultaneously?
Due to the high living costs, it has become more and more common for employees to search for a secondary income to supplement the income received from their primary employer. The question is whether an employer should allow this, and if so, under what conditions?
What is moonlighting?
Moonlighting is when an employee works a secondary job alongside his primary job without informing his primary employer. Moonlighting may significantly impact the employee’s productivity at their primary employer or, even worse, compete against their primary employer. It, therefore, becomes essential for employers to take measures to proactively manage the practice of moonlighting.
The South African Constitution allows everyone the right to work, so employers cannot prohibit employees from working. Employers are not expected to accept the negative consequences that an employee’s practice of moonlighting brings them.
It is essential to understand that all employees have a fiduciary duty to act in good faith towards their employer. This would imply that employees must further protect and enhance their employer's interests.
Navigating moonlighting in business
It is in the employer's best interest to state in writing what conditions moonlighting is allowed and under what conditions it would constitute misconduct.
The employer may include a clause in employee employment contracts that require an employee to disclose any outside interests or additional employment to them on appointment or during employment when the employee is contemplating moonlighting.
The employer should also have rules that prohibit the employee from taking on a second job if that second job contradicts the employee's primary employment contract. If the secondary job causes harm to the primary employer or if the secondary job affects the employee’s capacity to perform work for his primary employer, that employee should have written consent from the company before taking up any secondary job.
It is vital for an employer to keep in mind that moonlighting in itself is not ordinarily recognised as a form of misconduct and that the employer should explicitly include moonlighting and the conditions attached thereto as part of their disciplinary codes and procedures - Labour Court in the case of Martin & East (Pty) Ltd v Bulbring and others (2016).
Managing the situation
Each case of moonlighting should be investigated and judged on its own merits. The employer should determine if the second job interferes with the employee’s primary job. An employer will, for example, be hard-pressed to discipline an employee for repairing cell phones over the weekend when their ordinary job is sweeping the floors from Monday to Friday. This is because the second job does not interfere, compete or conflict with the primary employer’s business in any way.
With the appropriate policies and procedures, an employer can pursue matters of moonlighting, as employees may very well claim that they were unaware of any rules prohibiting moonlighting. It is, therefore, much easier to manage the practice of moonlighting when proper rules are in place and when employees are required to disclose any outside interest when they commence employment.
Please contact our offices at 0861 737 263 if you require any assistance with your company policies or have any queries regarding moonlighting.
