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With the current cost-of-living crisis, it’s tempting, if not necessary, for most to have more than one source of income to keep their heads above water.
Side hustles or gigs, as they're colloquially known by many middle-income earners, have increased over the years to augment income for lavish lifestyles. But now, they seem to help households survive.
However, contractual obligations can get you into trouble or, worse, fired if what you do on the side conflicts with your current job. This blunder is called moonlighting.
International job search site Indeed defines moonlighting as a situation in which an employee works more than one job. It adds that usually, the employee has one full-time job and one part-time job, though some use the term to refer to any situation in which a person works for more than one company.
Chris Pio, dispute resolution official at the Consolidated Employers Organisation, adds that moonlighting is when a person has a second job in addition to the regular employment that he or she has.
“Often, the second job is kept a secret from his or her regular employer,” he says, adding that if the employee is engaged after hours in employment, which is similar to his or her regular employment, the employee is in direct competition with his or her employer or assisting his employer’s competitors. He continues:
The cost of moonlighting
Labour disputes as a result of moonlighting have made headlines. The recent one is the case of the dismissed Wits Business School lecturer, Dr Sibongile Vilakazi, whose review application for her dismissal in 2019 by the Commission for Conciliation, Mediation and Arbitration was recently set aside by the Labour Court.
Initially, she was employed by the university as a part-time lecturer. However, she later took up the position full-time.
Part of her contract highlighted moonlighting, describing it as "taking up additional employment, which may require time investment that may impede a staff member in meeting his or her contractual obligation to the university".
It, therefore, requested staff members to declare their interests by completing and submitting a prescribed form to the relevant human resources manager each year, adding that "any involvement in any external institutional affairs, including moonlighting, must be approved by the vice-chancellor’s office".
READ: Crappy pay and inflation force professionals to side hustles
Meanwhile, Vilakazi then took up another full-time employment with Kantar SA as an accounts director from Monday to Friday. In her Kantar employment contract, she agreed not to be directly or indirectly interested in any business of any kind without its prior written permission. "She even agreed to a restraint of trade," the judgment read, further detailing:
A month after taking her second job, someone anonymously brought to the attention of Vilakazi’s head of department a copy of her employment contract with Kantar. This resulted in a disciplinary hearing and, ultimately, her dismissal on 6 March 2019.
Pio explains that employees have to tread the fine line of moonlighting very carefully, adding: "If an employee is in direct competition with the employer’s business and deprives the employer of that income, it would conflict with the employer’s interests and constitute a breach of the duty of good faith."
Dr Sibongile Vilakazi vs CCMA Judgment by CityPress on Scribd
He states that if the employee is not in direct competition with his or her employer, the Labour Appeal Court has held that the mere fact that an employee is running a side business does not cause him or her to not fulfil their role in the employer’s business. He continues:
Non-compete policies vs moonlighting policies
Pio elucidates that a non-compete policy and a moonlighting policy both deal with the same aspect, in that they regulate what the employee may or may not do after hours for remuneration, but they do differ slightly.
He adds: "A non-compete policy will normally state that an employee is not allowed to work for or own any business in direct competition with the employer. Whereas, a moonlighting policy addresses employees taking additional jobs outside of their primary employment, whether in direct competition or not.
"While understanding the need for supplemental income or diverse projects, the policy ensures outside employment doesn't conflict with the employee’s primary job."
Since moonlighting deals with good faith by the employee to their company when taking on another job, Pio says they often breach the implied duty of good faith towards their employer if they are aware of but remain silent about information which undermines their employer’s business interests.
"The employee’s failure to disclose the information to his employer would be a breach of the duty of good faith and could justify dismissal. Therefore, not disclosing a side business or second employment would be unacceptable, and grounds for dismissal based on dishonesty may arise," he warns.
According to Pio, the Supreme Court of Appeal has expanded on the duty of good faith by confirming that it entails:
- Not to work against their employer’s interests;
- Not to place themselves in a position where their interests conflict with those of their employer;
- Not to make a secret profit at the expense of their employer; and
- Not to receive a bribe, secret profit, or commission in the course of or by means of their employment with the employer.
"If the employee breaches any of these provisions, they are in fact breaching their duty of good faith and it might constitute a dismissible offence."
Does this mean employees can’t earn extra income?
Not all is doom and gloom.
Pio advises that if you have a side business or are moonlighting and it is not in direct competition with your employer, the best course of action would be to disclose this to your primary employer.
"If you disclose the fact that you are moonlighting and not in direct competition with the employer, then the trust relationship remains intact, as you have acted in good faith when you make the disclosure. However, if you have a side business or are moonlighting in direct competition with your employer, you must cease pursuing this avenue of revenue as it will be a dismissible offence," Pio says.
READ: Are you experiencing gaslighting at work, or is it just your imagination? Here's how to tell
The key here, Pio adds, is that, as an employee, you have a duty of good faith towards your employer and any actions that are detrimental to that relationship can be a dismissible offence.
- Consolidated Employers Organisation represents employers in all labour-related matters, particularly with the CCMA and Bargaining Council. Contact them on 012 880 0294 or email admin@ceosa.org.za
