South Africa

Moonlighting can cost you your job

Webber Wentzel senior associate Mpumelelo Nxumalo warned that moonlighting, often referred to as a side hustle, can cost you your job.

Nxumalo referred to the case of Dr Sibongile Vilakazi, who held two full-time positions without disclosing it to one of her employers, Wits University.

Vilakazi’s story started after she was employed by Wits University part-time. She was offered a full-time position, which she accepted.

Her contract with Wits University contained a clause requiring her to obtain approval for any moonlighting.

However, after being employed by the university, she took up full-time employment with Kantar, a global data, insights, and consulting company.

Things took a turn for the worse after someone alerted the university of the situation by placing her Kantar employment in the head of the department’s pigeonhole.

Wits University charged and dismissed Vilakazi for moonlighting without approval, which was prohibited in her contract.

Vilakazi fought back, taking the Commission for Conciliation, Mediation, and Arbitration, the commissioner, and Wits University to the labour court.

She argued that, based on her assessment, she could manage the two positions. She added that it would not prejudice the university and saw no conflict of interest.

However, the court did not agree. The Labour Court said it was an untenable proposition to be employed full-time by two companies without approval.

It also found that the fact that Kantar paid her more than Wits University placed her loyalties toward the university in question.

“How the applicant, as a highly qualified and academic person, could not see this is beyond comprehension,” the court said.

It added that moonlighting, as a matter of principle, is unacceptable and a breach of an employee’s fiduciary duties towards the employer.

“It must always be the sole prerogative of an employer to decide whether to allow this to take place and also on what terms it may be allowed,” the court said.

Mpumelelo Nxumalo, a senior associate at Webber Wentzel, said the judgement cemented the duty of good faith and the implications of moonlighting for employees.

“The court emphasised the necessity of proactive disclosure to employers, affirming that moonlighting, without prior approval, constitutes a breach of fiduciary duties and undermines the employer’s prerogative to make informed decisions,” Nxumalo said.

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