# Regulatory Compliance Category > Labour Relations and Legislation Forum >  Moonlighting and dismissal

## manhav

Moonlighting refers to the situation where an employee hold a second job, whilst in the service of the employer. 

The question I want to ask is whether the fact that the employee holds on a second job, with or without the consent and permission of the employer, warrants a conclusion that there exists a breakdown of the trust relationship between the employer and employee, which in turn would make the continued employment relationship intolerable. In other words: *May I dismiss an employ who is moonlighting?*

Moonlighting presupposes an employee offering services to two employers in exchange for reward. It may vary from an employee merely trying to raise extra cash, to a situation where the employee effectively â whether directly or indirectly â competes with the business of the employer thereby deriving secret profits.

I am of the opinion that we must first consider the employment contract and/or company policy. Thus, if the employment contract or policy prohibits moonlighting, then an employee who engages in it commits an offence that should be dealt with according to the applicable prescripts of that employment policy. 

However, if the employment contract or policy requires that an employee should obtain prior permission from the employer before engaging in moonlighting, then the employer must ascertain whether the employee has not obtained such permission and deal with him accordingly.

In the absence of any provision from the employment contract or policy dealing with the issue of moonlighting, it will be legally wrong to discipline the employee on the basis of misconduct. Instead, the employer may have to investigate the impact that the moonlighting has had on the work normally carried out by the employee. Should it be found that moonlighting negatively affected the employeeâs performance, then a disciplinary course to be followed would have to be the one of a form of incapacity known as âpoor work performanceâ for which item 9, schedule 8 of the Code of Good Practice: Dismissal (the Code) set out the necessary guidelines.

The absence of a clause or provision in an employment contract or policy prohibiting or regulating moonlighting, means absence of a sanction if an employee engages in moonlighting. As such, an employee who is found to have engaged in moonlighting cannot legally be accused of having broken the trust relationship merely by moonlighting.

I think that everyone will agree with me that moonlighting has practical implications of depriving the employer of the full attention and skilled services of its employees. 

On the other hand, it is equally true that the employers cannot unreasonably deprive employees the right to engage in additional external remunerative employment where the intention is merely to gain extra cash as opposed to prejudicing the employee, provided permission is first sought, if moonlighting is regulated.

Thus, in order to prevent uncertainties, moonlighting has to be regulated and controlled. Policies must be put in place and their terms must be incorporated in the employment contract for employees to know and appreciate the consequences of breaching them. 

Our courts cannot readily assume and accept the breakdown of the trust relationship â the employer have to present persuasive evidence thereof. I will over the next few days discuss some relevant case law on my blog, and you are welcome to follow my blog for a discussion of these cases.

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## AndyD

Moonlighting is rarely that clear cut. Apart from using skills often attained at one place of employment to earn extra money in another job, there is usually an issue with company transport being used for non-company business, this can lead to insurance complications etc. Also company petrol, and tools, safety equipment, clothing with company logos, may be involved as well as a possible conflict of interests and even intellectual property misappropriation if the moonlight job is a competitor. There's also the company reputation that can be damaged by unsupervised employees moonlighting without a quality control structure. 

The legislative aspects of this one only scratch the surface.

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## desA

A company has no right to 'own' an employee - this is a violation of their human rights.

It is generally accepted international practice that an employee is paid for the time he/she works at the place of employment. If the employee manages to hold down a day job, but can successfully manage alternative work after hours, without prejudicing his day job - then there should be no contest. This alternative work can take on various forms - own business, family business, hobbies etc.

SA companies have a nasty habit of wanting to 'own' their staff. This is immoral.

Perhaps instead of yet another round of new laws, the employer should seek guidance in regards to the human rights of their employees.

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## manhav

Andy D, I agree with you in that regard. However, the discussion I started was aimed at laying a basis for the discussions to follow. I will be discussing some case law with specific reference of examples of what the courts regard as a breakdown of the trust relationship.

I am fully aware that the discussion will, at some time, revolve around the issue of restraint of trade, which is incorporated into most employment contracts. That is, however, quite another topic, which may keep us busy for a couple of days.




> A company has no right to 'own' an employee - this is a violation of their human rights.


 Posted by DesA

You are right in the sense that the employer does not own the employee. Slavery has been abolished years and years ago.

But, does the employee have the right to utilize the time and equipment of his employer to promote his second job or even his own part-time business?
Does the employee have the right to moonlight for a competitor of the employer? Does the employee have the right to divulge trade secrets and other confidential information of the employer in order to promote his second job and/or own business?

If one presupposes that the employee has these rights, then the employer and his business, which includes all the other employees, are at the mercy of the ambitious employee. If you assume that the ambitious employee is moonlighting for a competitor of the employer, then it is possible that the employer can, on the long run, suffer damages to such an extent that he has to close down business. This will have an impact on the other employees. What about their rights?

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Dave A (16-Feb-10)

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## sterne.law@gmail.com

I think at this juncture lets divide moonlighting into 2 classes or time frames -
a) During working hours
b) After working hours (with the principal employer)

I think manhav post is related to b) where the employee does work after hours. As per desA one must question the moral issue and naturally there is a Constitutional issue as to if the employee may do other work. Competitors or similiar business aside, there really should be no limiting an employee, provided it does not affect the employers business. (refer later to best interests). Of course an issue that crops up, is the BCEA lays down conditions relating to down time or turn around time. ie the employee must have a continous 36 hour break once a week, 12 hours in between shift and the employee MUST take annual leave. These laws are for the health and the welfare of the employee. By doing an alternative job, the employee is now, in essence, violating these laws. hmmm...food for thought. This said, I agree taht the employee shoudl be free to do other work, provided taht the afore mentiond, conflicts and performance issues are met.

If the employee is doing it during working hours that is a seperate issue and far more in the employers favour.
However, in both instances, if the employee is using company property, then a charge of misuse of company property is available.
Another issue, such as trade secrets etc, would be that an employee is bound to always act in the best interest of the employer, this includes after hours. This often arises in lets say panel beaters - they work at a panel shop and also do work at home. Does the employee act in the best interest of the company by taking the business and not referring to the company? And with out doubt if the employee is using techniques or methodologies unique to the employer this strenghthens the employer position.

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## desA

To set the record straight:
To use the 1st employer's time, information, resources to operate other busniesses, is stealing. I do not condone this, in the least.

What is done, after hours, with own resources, should be up to the individual. If the alternative work does impact his/her efficacy in discharging his duties towards his 1st employer, then a conflict of interests may occur.

In other words, the moment the employee clocks out & leaves the 1st employer's premises, under own steam, then he/she becomes a free person to exercise their right to make a fair living. The 1st employer should have no rights over the person, unless these off-duty services are pre-agreed per contract, & importantly - paid for. The scales need to be balanced in terms of give-take. It cannot all be take on the part of the employer - this is a form of modern-day slavery.

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## Dave A

> In other words, the moment the employee clocks out & leaves the 1st employer's premises, under own steam, then he/she becomes a free person to exercise their right to make a fair living.


Unless that work is in competition to the employer, surely. Can you possibly condone this if it's in the same line of work?

There is another aspect to this - the issue of disclosure. Should the employee be disclosing this other activity to the employer? If the employee is reluctant to do so, you have to wonder why.

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## daveob

How many times have you heard a contractor ( actually, an employee thereof ) say that he could do the job a bit cheaper later in the day / week / week-end if the client pays cash ?

He's moonlighting and using the employers name, transport, tools, and stealing the legitimate clientele of the company.

And even if it's in a completely different line of expertise that he's moonlighting, is it fair to the full time employer to get the half hearted attention and concentration of the worker 'cos he's so tired from the extra hours he puts into the other job ?  It's definately going to affect performance.

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## Dave A

I'm looking forward to those precedents, Manie. Could you link to them as you put them up on your blog, just so we can read 'em nice and fresh  :Wink:

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## desA

> Unless that work is in competition to the employer, surely. Can you possibly condone this if it's in the same line of work?


Of course. This would be a simple case of conflict of interests. It is also not ethical.




> There is another aspect to this - the issue of disclosure. Should the employee be disclosing this other activity to the employer? If the employee is reluctant to do so, you have to wonder why.


What the person does in their own time, should have nothing to do with the 1st employer - unless they are prepared to compensate the person for 24 hours per day of fulltime employment. Of course conflict-of-interest situations should be ethically excluded.

South Africans are vey hung up about the employee ownership/slavery aspects. Running 2 & 3 jobs is common in other parts of the world, to make ends meet. The rules-of-conduct are understood by all. In most cases it is simply a non-issue.

For instance, Joe Blogs leaves work, heads off to the supplier to get some components for his after-hours job - fixing fridges. He then goes home & works on repairing a fridge for a local person in his area. He drops the fridge off on the way to his day job & arrives in time to provide another 8-9 hours day's service - as a design engineer. Cycle repeats. On the weekend, he travels into the countryside & paints landscapes. These are offered for sale 4 times per year.

Is this moonlighting?

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## manhav

Hi guys, sorry for not posting that case law yet. I have had 5 criminal trials in the past week, and next week I have 4 more trials. I will, however, as soon as possible post those court cases I referred.

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## Yvonne

> How many times have you heard a contractor ( actually, an employee thereof ) say that he could do the job a bit cheaper later in the day / week / week-end if the client pays cash ?
> 
> He's moonlighting and using the employers name, transport, tools, and stealing the legitimate clientele of the company.


Surely an employer is entitled to fair expectation of the employee to not do anything that is to the detrement of his employer!  *even if it is not in the employment contract.* 

Just as a comment - I am constantly amased at how often people who to all intents and purposes appear to have fair moral values, will gladly take advantage of an offer of an contractors employee to do the work in their own time, to save them some cost. I have had frequent arguments with friends over this issue.  It is stealing - plain and simple!

Surely this is a "trust" issue and the many options of actual situations should have a different outcome, and cannot all be covered by legal clauses.

This is precisely the sort of situation that must have a negative affect on the willingness to employ in small business, as it is impossible to cover every possible situation in an employment contract (If anyone has an employment contract of this sort - please, please let us have a copy - happy and willing to pay for it!)

Yvonne

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## AndyD

> Just as a comment - I am constantly amased at how often people who to all intents and purposes appear to have fair moral values, will gladly take advantage of an offer of an contractors employee to do the work in their own time, to save them some cost. I have had frequent arguments with friends over this issue.  It is stealing - plain and simple!
> Yvonne


These would be the same people who will happily buy goods of dubious origin to save a few bucks but complain bitterly when their house gets burgled.

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## sterne.law@gmail.com

> This is precisely the sort of situation that must have a negative affect on the willingness to employ in small business, as it is impossible to cover every possible situation in an employment contract (If anyone has an employment contract of this sort - please, please let us have a copy - happy and willing to pay for it!)
> 
> Yvonne


On the contract issue - The law allows for the fact that not every rule and or condition can be set down on paper. Thus many disputes are covered by past practice or common knowledge and then of course the common law. An excellent example of the common law principle is the need to act in good faith towards the employer and best interest. This would take care of the "actions that are detrimental to the employer." This in turn would mean that even where their is no written agreement on moon lighting, if the moonlighting is in some way detrimental to the employer, eg advising potential clients to come to me after hours to do the work for less, would not be in good faith and actionable.
Also many transgressions such as moonlighting are normally covered in most Code of Conduct Policies.

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## tec0

This is not so clear cut. Let me explain. 

Firstly if an employer expects his / her employees to ONLY work for her / him then that must be stipulated in the contract. Secondly if the employer expects the employee to survive on a crappy salary then the courts love to take into consideration âwhat is and is not humanly possible and or acceptableâ  

If the person used his skill after hours to perform work then it is done so on his time. Did the employee use equipment or anything else from the company to do the work in question? Well that is left up to speculation.

It IS of note that most companies understand that times are hard and will allow workers to bring in some extra work for themselves. I can point to two companies that is actually very encouraging and support their workers in there undertakings. 

When I was employed as a computer technician I did a lot of private work at night and when my boss found out I was dismissed. However those where early times and I was still new to the âwork thingâ I had no contract and my commission was not paid to me so I did what I had to do to keep the clothing on my back. 

To this day I have the right to survive! I have the right to eat and I have a right to good health. Now if I am willing to work for it and my boss said to me sorry this is our policy and contract and the money is not much well then I will just keep my mouth shut and work after hours until I am dismissed because I have the right to live.  :Thumbup: 

This is just my opinion on this post...   :Innocent:

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## sterne.law@gmail.com

I was doing some research when moonlighting came up and I remembered this post. This case may not be an excellent example of the touch and go type moonlighting, but it does give a commisioners viewpoints and some more case references. Please note this is the actual commisioners report and I have no personal role in the writings below. if anyone would like the full case or any referred to drop me an email I will be more than happy to forward to you.

Commissioner:	Sean Molony	
	Case No.:	KN18726-03	
	Date of Award:	2-Feb-2004	



In the arbitration between:


	 Mr R Naidoo							Employee party (Applicant)

and

	Chamberlain Phipps cc				Employer party  (Respondent)

What was the rule which the Applicant was alleged to have contravened?
[1]	[25]    The Applicantâs case is that there was nom rule which he contravened. It is common cause that the Respondent has no disciplinary code. 
[2]	[26]    The allegation in the  notice to the Applicant was âyou have failed to work in accordance with your obligations as an employee in that on 21st, 22nd and 25th August, you spent an unacceptable amount of time at Malvern Dry Cleaners during your normal working dayâ. At the commencement of the arbitration I understood the allegation to concern absence without leave. It soon became apparent that the substance of the allegation in fact concerned one of conflict of interest, and for that reason I put to both Kemp and the Applicant notes I had made on the law pertaining to a conflict of interest, to the effect that if the employee engages in additional employment outside working hours (so-called moonlighting) there will normally be no conflict of interest, unless the additional employment is carried on in competition with the employer or in some way encroaches upon the employerâs interests, with the emphasis on the last phrase. At no stage was there ever any dispute or question from either representative, that I had incorrectly understood the allegation, and for that reason I find that the real reason for the dismissal of the Applicant is that he was alleged to have acted in conflict with the interests of his employer. 

Did the Applicant act in conflict with the interests of his employer? 
[3]	[27]    In this matter the alleged conflict of interest arose because of the time spent by the Applicant at the Malvern Drycleaners, his wifeâs business. The question is whether he did in fact spend the time as alleged. 
[4]	[28]    The video and Gilmoreâs evidence establish that the Applicant did what the Respondent alleged. 
[5]	[29]    The Applicantâs defence was that he was on his lunch time, which was disputed by the Respondent, but this left him in the difficult situation of having to explain a one hour twenty minute lunch on 21 August, one hour thirty on 28 August, and his trips to pick up a learner, and to the TAB on the 22 August. His response was that with all the overtime and effort he had put in to the business over the years of his employment, he was entitled to the extra long lunches. 
[6]	[30]    The question is whether the Applicantâs conduct amounts to a conflict of interest. 
[7]	[31]    The rule that an employee may not compete with his employer arises from the common law requirement that an employee act in good faith, and therefore owes a fiduciary duty to the employer which involves an obligation not to work against the employerâs interests [13]. This has been further interpreted as requiring the employee to devote his time, energy, and skills to further the interests of the business of the employer [14]. What this means is that an employee is prohibited from 
Â·	Â·   involvement in another business which competes with his employers business [15]. The element of competition makes this form of breach of the duty of good faith particularly serious, and dismissal would therefore be appropriate [16]. In SALSTAFF obo van Niekerk and South African Airways [17] where the employee divulged information to a company owned by his wife thereby giving her an unfair advantage when tendering with employer, the arbitrator found that a conflict of interest arose and the employeeâs dismissal was held to be fair. In FAWU obo Maleke and South African Breweries  [18]the employee set up a  recruitment agency for his own account, and then recruited the employerâs workers. The arbitrator was of the view that the employeeâs actions were âthose of an active member of a company which he had co-founded and that through his actions he was directly in conflict with the best interest of his employer. He sought to deprive, for his own benefit, his employer of employees whom it had trained, developed and compensated for their servicesâ¦. [he had ] acted in conflict with the company and that this caused a breach in the relationship of trustâ. 
Â·	Â·   having a business interest in another organisation which has dealings with the employer. Where an employee had an interest in a firm which supplied his employer with computer equipment, the Industrial Court found that there was a conflict of interests and as a result the employee had a duty to disclose his involvement with the supplier. The failure to do so breached the relationship of trust between parties, and the employees dismissal was found to be fair  [19].  
Â·	Â·   working for another person where his own interests are at odds with the interests of his employer. This form of the conduct can arise where despite the fact that there is no competition, there is nevertheless a conflict in the interests of the two parties. An example which illustrates the point is where there is a conflict between the employeeâs participation in union activities, and the employeeâs function as a manager to conduct disciplinary hearings [20]. A central fact which needs to be determined in order to show that the employee has breached this form of the rule, is when the employee works for the other person. Where the employee works for another person outside working hours no conflict of interest can arise unless the employer can show that the employee was competing with his business.   Where the additional employment takes place during the normal working hours of the employee, a conflict of interest arises [21]. 
[8]	[32]    Applying the above, and in particular the previous statement of the law, I am of the view the Applicantâs conduct amounts to a conflict of interest.  The evidence is that the Applicant was assisting in the conduct of his wifeâs business which meant that he was not selling his employerâs goods. The Applicantâs assertion that he was doing this during his lunch time did not add to his credibility as a witness, nor did his statement that he deserved the time off due to his years of working overtime. The fact is that the Respondent is a small business operating in uncertain times in a sector which has shrunk dramatically under intense competition from overseas manufacturers, and every employee is required to pull his weight. 

Is dismissal the appropriate sanction?
[9]	[33]    How serious is the Applicantâs misconduct? This is the question which I battled with during the arbitration and which I find  difficult to answer even now. On the level of compassion and empathy, I find the sanction difficult to swallow - the Applicant has worked for the company for a long time, and he has been seriously ill. Kemp, however, was of the view that the Applicantâs conduct had breached the duty of trust and that he was no longer prepared to work with him.  I suppose the difference between Kempâs view and mine is that I do not have to work with the Applicant â his is based on business reasons, I perhaps focus on the personal impact of the sanction.
[10]	[34]    It is trite law that an arbitrator is entitled interfere with the sanction imposed by the employer only if the sanction is indefensible in terms of norms of industrial relations practice, and values that legal system was meant to uphold. The fact that I would not have imposed the same sanction is not the issue. Where the employee has an interest in another entity, the seriousness of the misconduct will depend on the degree of prejudice to the employer [22].  The seriousness in this case is that the Applicantâs conduct impacted directly on the financial viability of the business; the less sales calls which are made the less sales and income is generated. This is the angle which Kemp took, and I can find no fault with it. 
[11]	[35]    I can therefore find no reason in law to interfere with the sanction imposed by the employer, and the sanction must accordingly stand. 

Award. 
[12]	[36]    For the above reasons I find that the dismissal of the Applicant is fair and the application is accordingly dismissed. 

Dated at Durban on the  2 February 2004

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## sterne.law@gmail.com

Commissioner: Alfred Matabane_______

A case of view from the other side. This relates to the absence of any contractual prohibition of moon lighting. I suppose the big question now is can a company rightfully preclude you from doing otherwork that is not in conflict, competition etc. Once again this is the actual commisioner report and not my writing. My apologies for not editing but you can pick out the key points.       

  Case No.:       GAJB22170-05________

                                                                Date of Award: 25 November 2005





In the matter between:



Anne-Marie Mylie                                                     Applicant 





And





BBP Security                                                               Respondent 



DETAILS OF HEARING AND REPRESENTATION



The applicant appeared in person while the respondent was represented by its Human Resource Manager, Mr Keokemoer.



ISSUES TOBE DECIDED


Whether the dismissal of the applicant was substantively fair of unfair. The procedure followed was not challenged.



SURVEY OF EVIDENCE 


The respondent led the evidence of two witnesses,, Johan Penning, the MD and T. Breedt, the Financial Director.  Their evidence was to the effect that the applicant was employed by the respondent as a Marketing Director.  According to them her working  hours were from 08h00 to 17h00.



Sometime during July of 2005, Mr Breedt received a call from a Mr Van Eden who worked fro another company. The said Mr Van Eden enquired whether the applicant was also employed by the respondent as she was working for his company. When Mr Breedt replied that she was indeed employed by the he told him that he was not prepared to allow that a person can earn money from another company and his company as well. He asked him to come to the respondents offices to make a statement and the statement was subsequently furnished.  The applicant was then charged with dishonesty and neglect of duties and dismissed. They also referred to the employment contract, which prohibited employment by any other company during the subsistence of an employment relationship by the respondent by its employees.



The applicant then testified that she started working for the respondent on the 14th April 2002, as a Marketing Consultant and earned R7 000.00 per month. She testified that all members of the respondents management knew about the extra job she was doing and that she was doing that job after hours.  Her working hours had always been from 08h00 to 15h00 until in July 2004 when a proposal was made that her hours should change to be from 08h00 to 17h00.  She never agreed to that proposal as evidenced by the absence of her initials on all the pages purporting to constitute her employment contract. The document was signed by her on the last page after she was asked to do so for record purposes with a promise that all the clauses she was not happy with would be negotiated. She further testified that the product she was selling for the other company was quite distinct from that of the business of the respondent and there had been no conflict. She sought compensation.



ANALYSIS OF EVIDENCE


The contract that it is alleged the applicant signed leaves much to be desired.  The respondent had itself brought a copy of that contract which had a lot of cancellations and insertions done by handwriting. This clearly gives credence to the applicants version that the contract was presented to her as a draft in 2004 and she had always been waiting for the respondent to come back to her for negotiations. I accept also her version that she had signed the last page thereof for record purposes.  All the other pages had been initialled by the Managing Director and a witness but the signature of the applicant was lacking.



Even the Managing Director did not sign on the day or year the contract was concluded with the applicant but was only signed by him on the 2nd July 2005, some two weeks before the applicant could be charged and dismissed.  This clearly was done for damage control purposes.  The contract cannot therefore be relied upon to determine if indeed the applicant was precluded from moonlighting. There was also no policy precluding her from doing that which was alluded to by the respondent.



In the absence of any of the above there is clearly no rule in law that prohibits employees from doing part time work after hours. It is clear from the contract and the insertion that the applicant had made that she was at that time work evidence as well.  I reject the respondents evidence to the contrary.



There was also no conflict of interest as the products the applicant was marketing differed materially.  In the end, I find the applicants dismissal to have been substantively unfair.  I enter the following award:



AWARD


1. The respondent is ordered to pay the applicant an amount of R70 000.00, representing ten months compensation within 21 days of receipt of this award.

2. I make no order as to costs

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## sterne.law@gmail.com

I think we can summarise it as follows -
Any other work where you are *competing directly* with employer, using employer facilities and such will in all probability be dismissable if not under moonlighting, the trust relationship or misuse of company property etc, etc.

In the *absence of any contract* or code of conduct saying anything about other work, provided you are not using the employers facilities and in direct competition, then you are in the clear. Where the employer feels it is interfering, perhaps receiving phone calls during working hours, then despite the absence of a rule or contractual obligation, he will be able to take action. A poor work performance route is available if the employees work is declining eg tired and making mistakes.

Too the more contentious issue, the contract or rules not allowing moonlighting. Putting the straight disallowance aside, and going to the requirement of *permission*, verbally or in writing in order to do other work. If the employee has not sought the permission, then he or she has a problem as it is straight disobedience and does go to the trust relationship(something Dave touched on) Consequently dismissal could be sanctioned, more for the disobedience than the actual act of moonlighting.  The issue that then arises is *when can the employer refuse*, or rather may he? Refusal would need to be reasonable. Reasonable in all probability related to afore mentioned problems - competition, facilities etc. So in essence the employee is able to moonlight, with the employer having redress as mentioned above (poor work performance, competition etc) if the employer is refusing then the employee can seek redress in a number of venues and methods.
Can the employer blatantly refuse moonlighting as a term of employment? I think desA touched on this via the slavery route. Of course an employer can make any rules they wish or that they feel is neccessary to run their busines. Like anything, if challenged they need to show the reasoning. Consequently I do not believe that an employer can flatly refuse moonlighting, again subject to the afore conditions. What can the employee do? The employee can turn down the job and then refer the matter, again via various routes. Alternatively take up the position and when the issue comes up, if doing other work, contest the validity of the rule which is allegedly broken.

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Dave A (09-Mar-10), tec0 (05-Apr-11)

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## Dave A

My first impression - Common law does quite well.  :Stick Out Tongue: 

I'm filing this bit away for future reference -



> [10]	[34]    It is trite law that an arbitrator is entitled interfere with the sanction imposed by the employer only if the sanction is indefensible in terms of norms of industrial relations practice, and values that legal system was meant to uphold. The fact that I would not have imposed the same sanction is not the issue. Where the employee has an interest in another entity, the seriousness of the misconduct will depend on the degree of prejudice to the employer [22].  The seriousness in this case is that the Applicant’s conduct impacted directly on the financial viability of the business; the less sales calls which are made the less sales and income is generated. This is the angle which Kemp took, and I can find no fault with it. 
> [11]	[35]    I can therefore find no reason in law to interfere with the sanction imposed by the employer, and the sanction must accordingly stand.


The number of times the conciliation facilitator tries to intimidate the employer that their action was too drastic...

"Would that be _too drastic in your opinion_, sir or legally _indefensible_?"  :Innocent:

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## Dave S

Just to add my 20c worth.

Back in 1998 when the bond rate went through the roof I found myself slightly short on cash, so I took a part-time job as a driver for a delivery company to make-up the shortfall. My "day-job" was as a Mechanic with a reputed Golf Course that did not supply me with company transport or a cell phone etc. However, this was a secure estate and I had an access card to the property. My "after-hours" job also required that I would deliver to many of the residences on this particular estate and my short-cut was to bypass the security by simply using my access card, as I was always able to get through the long security queue quickly, the food I delivered was always hot and customers would start asking for me to be the appointed "deliverer" whenever their deliveries were required. Fortunately, my "day-time" employer offered me an increase within a couple of months and I no longer needed to do the extra job.

I shudder to think what the legal implications could be if one of the residents had complained about the delivery guy getting onto the estate without security knowledge?

At the end of the day, people will do what they need to feed their families, even if it means breaking a few rules, we must just be carefull of the extent at which the rules are broken.

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## AndyD

I don't see why it would really make a difference what job you were doing if you personally had prior security clearance.

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## manhav

I am amazed that this article attracted so much interest and comment. 

The point I actually wanted to make, and I do apologize for this late submission, is that moonlighting per se does not necessarily constitute an element of dishonesty which would result in a breakdown of the trust relationship between the employer and the employee.

I want to thank sternelaw for his input by providing us with 2 actual CCMA cases regarding moonlighting.

In considering whether moonlighting constitutes dishonesty which resulted in the breakdown of the trust relationship between the employer and employee, it is my submission that regard would be given to the terms and conditions of the employment contract.

If the employment contract prohibits moonlighting, then the employer will be entitled to take disciplinary action against the relevant employee within the framework of its disciplinary code. I do not suggest that, even if it is found at a disciplinary hearing that the employee was busy moonlighting contrary to the provisions of the employment contract, dismissal is the proper sanction. I will discuss my reasons for this later in this post.

If the employment contract regulates moonlighting, meaning that the employee must first obtain the written consent of the employer prior to commencing with a second job, the employer may only take disciplinary action against the employee if it was established that the employee did not obtain the required consent. Again I do not suggest that dismissal is the proper sanction in such an instance.

But, on the other hand, should the employment contract remain silent on the aspect of moonlighting (in other words, it does not prohibit nor regulate such conduct), then the employer can not take disciplinary action against the employee on the ground of moonlighting.

If the employer wishes, in any of the 3 circumstances mentioned above, wish to dismiss the employee, he must be able to proof that moonlighting led to the irretrievable breakdown of the trust relationship and that a continued employment relationship cannot be sustained.

In the event of moonlighting, I submit that the employer must be able to proof some element of dishonesty. Some examples will be stealing time of the employer to moonlight, using the equipment of the employer to do private work, by neglecting or failing to perform work according to the required standards, etc.

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## VirtuallyAssist

I cannot see how a company can dismiss you for moonlighting (unless of course you are doing private jobs by taking away customers from your current employee).

In the USA many people hold up to 3 jobs at the same time. It is a matter of survival - if you cannot earn enough money from one job - you have to look for another to earn a little extra. I admire these people as it cannot be easy going from one job to another or working all weekend to make some more money.

Perhaps if these people were paid a little more each month, they would not need to look for moonlighting jobs.

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## AndyD

I think the difference here is that most of the comments have been about tradesmen as opposed to retailing staff. Tradesmen would be a lot more likely to use company transport, tools or materials illegally than retail staff. Even then I think if someone is working one fulltime job and two part time jobs then they're probably not performing as they should be in their fulltime job.

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## scarborough.security

I need help. I have an employee who is working for another security company. He has not informed me of his other position. He has stayed away from work for this company since 30/04/2010. He did receive a duty roster stating his duties with us. We have gone to collect him for duty but have been told that he is not home. He has made no effort to contact this office. I found out about his other employment by chance and contacted that company. They were not aware that he is employed by us.
please can anyone assist or advise me.

Mike

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## manhav

Please sent me an e-mail with a copy of his employment contract. I will then advice you as to possible steps against him, if any.

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Dave A (07-May-10)

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## sterne.law@gmail.com

I suggest you by pass the potentially more tricky moonlighting issue and start a procedure for dismissal for absconding.

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## Malc75

I know this is a year late (well just over)  I am an advertising sales person I sell ad space in a business to business  magazines over the telephone for a company here in Cape Town. I have an opportunity to do the exact same thing for a company in the States however selling to clients for a lifestyle magazine in New York. I finish work at 5pm and do nothing all night except watch movies I am thinking of doing this to earn extra money. My view is yes they in the same industry  however completely different clients and markets and I would be using my own resources and finances to fund my little home office! My question is am I doing something illegal by taking this job?

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## Dave A

What are the terms of your current employment contract?
What are the chances of you pre-empting a potential problem by asking your current employer if you could take this second job on?

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tec0 (25-Jul-11)

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## tec0

I actually had a moonlighting case not too long ago. Firstly the company policy was none existent; the employee had reason to fear dismissal due to favouritism and that was before the company tried to force a newly written contract onto the employees in general. 

The contract was drafted to incriminate employees and I had a real problem with that bit because verbal agreements are still an agreement. So in this case a lot of conflict due to neglect, victimization and random verbal agreements. 

Fact 1> Employment contracts must be explained and signed on the day of employment. Or within a reasonable time frame. 

Fact 2> Policies must be explained and signed by both the employee and employer. These policies include but are not limited to the employer’s rights and actions and that of the employee. 

Fact 3> The employee has rights that include not to work in a dangerous place and or under conditions that may be harmful to her/him.  Especially without training and or proper information and equipment. 

Also remember your employee has a right to life. And if one pay and employee R300 a month for services and he/she seeks other employment after hours than they do so because they need the money. This is where reasonability comes into play. Simple: WHAT IS REASONABLE? 

I am not saying moonlighting is right but there are conditions where it is reasonable for the employee to do so and there are conditions where the employee was unreasonable. This also happens.  

So when you look at moonlighting remember the law also looks at the “human aspect” and what is “reasonable”

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## wynn

When I was younger a lot of my buddies and I used to work as barmen and waiters to earn a little extra pocket money and to get a free meal as well, I don't consider this as illegal.
A couple of buddies used to do PJ's in the same field as their employer, that is illegal!

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## Malc75

There is nothing in our contracts that say anything about that. In fact I dont even have a restraint on trade agreement in place. So just from my view I dont see anything wrong with it if I am missing something please help! Much appreciated !

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## Dave A

> So just from my view I dont see anything wrong with it if I am missing something please help!


If things come to a head, the issues might well not be judged just from your point of view  :Wink: 

If your second job is in the same line as your primary job, there is every chance of a conflict of interest arising. The mere fact that you're asking about this shows that at some level you recognise the possibility of conflict.

My suggestion is be straight up and honest with your employers to enhance rather than jeopardise the relationship. If you can't be straight up with them, well... I'd have trouble employing you just on that "little" problem alone.

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## Malc75

I understand and I am not trying to break the law in any small amount which is why I posed the question. I would rather quit my job and follow the new opportunity than stay where I am!

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## Malc75

Thanks all for the advice and responses !

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## tec0

> I'd have trouble employing you just on that "little" problem alone.


That is true Dave, however in my case the employee was honest about his second job and what it entailed. At first the employer did not have a problem with this at all and gave his blessing. When they forced down there contract on the employee it had restriction of trade and all that kind of stuff in it basically incriminating the employee before he had a chance to sign it. 

Most employers do what they want with their employees and I have seen it happened, anything from physical abuse to victimisation and not everyone is forgiving about the matter so being honest is really difficult for an employee as of late because the penalties is always a final written warning and or dismissal. 

So I wouldn’t go so far as to say the employee wasn’t honest but rather that the employee couldn’t say anything because of the possibly of dismissal.   

Honesty is commendable but "sometimes" not practical I am sorry to say  :Frown:

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## Ismail Irfaan

I one cannot survive the salary that he receives to support his family gets a part time job to make ends meet is that moonlighting???

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