Moonlighting has become more common for those looking to earn extra income, but should employees disclose their side activities to their employers, especially where a conflict of interest is possible?
This was recently addressed in the case of Bakenrug meat (PTY) Ltd v/a Joostenberg Meat v CCMA and others in which this issue was considered by the court, said the law firm ENSAfrica.
“The employer’s activity in this case was the production and sale of a range of meat products. The employee was a sales representative in the company. However, the employee also operated her own business in which she traded biltong.
“When the employer became aware of this, she was terminated after being found guilty on the charge of ‘taking up employment while performing another duty’. Injured by this, the employee then seized the Conciliation, Mediation and Arbitration Commission (CCMA), alleging that her dismissal was substantially unfair.
The CCMA Commissioner found that the dismissal was substantially just because the employee independently operated a formal business that marketed a meat product while the employer also produced and sold meat products in which she was the salesperson.
“Therefore, the employer should have been made aware of the employee’s activities to decide whether there was a conflict of interest. Failure to notify the employer amounted to dishonesty, and it was insignificant that the employee did not market identical meat products to the employer,” ENSAfrica said.
Injured by the commissioner’s conclusions, the employee filed an application for review before the Labor Court.
Ruling Judge Cele found that the dismissal was materially unfair. He gave two main reasons for this finding:
- First, he acknowledged that there is no obligation for an employee to inform his employer of a potential conflict of interest. An employee is only required to inform an employer of a potential conflict if there is any competition.
- Second, after weighing the evidence, Cele concluded that the employee operated her business on weekends. Therefore, there was no “connection” indicating that his “secondary” business negatively affected the performance of his duties to the employer during the week.
Cele then concluded that the evidence did not establish that the employee was guilty of the charge that she “took up employment while also working in another capacity.”
“The learned judge found that the commissioner’s decision that the dismissal was substantially just would not have been made by a reasonable decision-maker, and he set aside the award,” ENSAfrica said.
Court of Labor Appeals
The Labor Appeals Court (LAC) overturned the Labor Court’s decision on appeal.
Ruling Judge Davis found there was clear evidence that the employee had failed to disclose an essential and material fact that she was independently operating a meat products marketing business, even though the meat products did not were not identical to those of the employer.
“The fact that the operation of his business had no impact on his performance was insignificant. What was significant was that she was employed as a sales representative in a meat products marketing business, while she was also involved in the marketing of meat products.
“His failure to inform the employer of these martial activities constituted dishonesty and a breach of his duty of good faith to the employer. Judge Davis therefore concluded that, on the basis of the evidence, the commissioner reached a reasonable decision that the dismissal was substantively fair and set aside the court’s judgment a quo. »
“The significance of this case is that it illustrates the extent of the ‘duty of good faith’ that employees owe to their employer and that there can be significant consequences for an employee if this duty is breached,” a declared ENSAfrica.
- Commentary by Kerrie-Lee Olivier of ENSAfrica.
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