Chuma Vabaza and Hope Mboweni
The current state of the South African economy has created the need for many South Africans to find ways to earn an extra income.
Some people opt to take a second job or a “side hustle”. However, to what degree is this permissible?
On November 3, the Johannesburg Labour Court in the case of Vilakazi v CCMA & Others delivered its judgment dismissing the review application launched by Dr Sibongile Vilakazi (applicant) with costs. This judgment reaffirmed the position regarding moonlighting, which is defined as having a second job in addition to your main job, without the consent of your main employer.
In this case, Vilakazi was initially employed by the University of Witwatersrand (Wits) in its Wits Business School section as a part-time lecturer.
Vilakazi was also employed at Alexander Forbes during her tenure as part-time lecturer. In May 2018, Vilakazi resigned from Alexander Forbes and took up full-time employment with Wits as a lecturer, effective from July 1, 2018.
As a full-time employee of Wits, one of the policies that Vilakazi had to familiarise herself with was the institution’s Declaration of Interests policy. The preamble of this policy stated that the adoption of the policy was essential, given the regular occurrences of academic staff taking up outside interests that could conflict with the interests of Wits.
The policy requires staff members to declare their interests by completing and submitting a prescribed form to the relevant HR manager on February 28 of every year. Where there are new appointments, the form must immediately be submitted to the HR department, which in turn would submit it to the vice-chancellor’s office for consideration. The vice-chancellor has the discretion to allow any disclosed conflict of interest. The policy further provides that any involvement in any external institutional affairs, including moonlighting, must be approved by the vice-chancellor’s office.
With the ink barely dry on her permanent employment contract with Wits, Vilakazi then took up employment with Kantar South Africa on July 4, 2018. She was employed as an accounts director on a full-time basis earning a monthly salary package of R91 667, which was some R36 000 per month more than what she was earning at Wits.
Vilakazi’s employment with Kantar came to the attention of Wits through her head of department, when someone anonymously placed a copy of her employment contract in the head of department’s pigeon hole. This was then reported to the HR department for further action.
Vilakazi was thereafter charged on January 30, 2019 and later dismissed on March 6, 2019 for gross misconduct in that “you took up full time employment with Kantar South Africa (Pty) Ltd whilst still in the full time employment of the University without the knowledge or authority of the University.
Your conduct was to the prejudice or potential prejudice of the University.” In March 2019, Vilakazi referred an unfair dismissal dispute to the CCMA. After conciliation failed, the matter proceeded to arbitration, where the commissioner found that the dismissal of Vilakazi was both substantively and procedurally fair. The commissioner held that the two contractual relationships were mutually incompatible and could not practically exist together.
On review, the Labour Court saw no fault in the commissioner’s award and held that it is undeniable that Vilakazi placed the interests of Wits at risk when she took up employment with Kantar. As a result, the court found that there was a conflict of interest – or at least a real risk of conflict of interest – to the prejudice or potential prejudice of Wits.
Duty of faith
The court was unimpressed with the defences raised by Vilakazi that she could manage the two positions and that she had no obligation to report her employment with Kantar to Wits until the end of February 2019. This was obviously rejected by the court, which agreed with Wits’ argument when it referred to a clause in the policy that was clearly ignored by Vilakazi.
This clause provides that in a case of a material change in association of a staff member, a revised declaration must be submitted within 30 days. The employment with Kantar was a material change in association that required an immediate amended declaration.
This case is a lesson to all employees to uphold their duty of good faith towards their employers and to disclose any conflicts of interest. This duty requires employees to not work against their employer’s interests and not place themselves in a position where their interests conflict with those of their employer.
* Vabaza is Partner; and Mboweni is a candidate attorney at Shepstone & Wylie Attorneys