A lawyer explains when freelance work can lead to an employee’s suspension and what legal recourse an employee has.
Besides needing extra money, you’re good at managing your time and don’t mind freelancing.
As a result, you start a “side hustle” or accept freelance work without disclosing it to your employer.
When they find out, they suspend you from your duties.
This happens often, according to Melanie Hart, employment lawyer and partner at Beech Veltman Incorporated, who explains why it’s important to disclose if you work elsewhere.
Recently, a popular radio presenter, Reverend Mzukisi Faleni, who presents the popular religious program Imvuselelo (Revival) on Sunday nights, was suspended for working as a freelancer at another station.
It is reported that the radio personality who has been with the station for over 20 years was suspended on June 10, 2022 by Umhlobo Wenene FM.
“Employees have a common law duty of good faith to their employers and, based on the duty of good faith, are required to disclose outside activities that may pose a conflict of interest,” Melanie explains.
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Due to what she calls a conflict of interest, Melanie says employees are obligated to disclose if they are employed elsewhere, even if they are freelancers.
There is a potential conflict of interest when an employee also works for another employer and, in fact, offers his services to two employers at the same time or conducts his own business for personal gain while employed, explains the lawyer .
Many employment contracts contain contact clauses that prohibit an employee from engaging in any outside income-generating activity, she adds.
She explains that legally, employees who engage in side activities without seeking prior authorization from their employer are subject to disciplinary action for conflict of interest or violation of the provisions of their employment contract.
“In a recent judgment by Bakenrug t/a Joostenberg Meat v CCMA, the Labor Appeals Court found that an employee who failed to disclose her side business which was in the same market as her employer had been dishonest. “
“The employee was employed as a sales representative by her employer, which produced and sold a variety of meat products. Without disclosing this to her employer, the employee ran her own side business which promoted dried meat products.
“When this came to light, the employee was charged and fired for dishonesty,” says Mélanie.
In some cases, the attorney explains, as long as one discloses their “secondary agitation” and asks their employer for permission “it may be possible for an employee to request permission in advance to freelance elsewhere.”
“Some moonlighting clauses give the employer discretion to consent to freelance work, provided there is no conflict of interest and the freelance work does not impose the performance of the employee’s duties in terms of the employment relationship.
“The employer has the discretion to decide if there is a conflict of interest. It is not for the employees to judge whether their actions may give rise to a conflict of interest and must be declared.”
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An employer has the right to impose a suspension with pay when investigating allegations of misconduct to ensure there is no interference in the investigation, tampering with evidence or intimidation of witnesses or while awaiting the finalization of a disciplinary measure, says Mélanie.
“The suspension in the above cases would be with pay, unlike a suspension without pay which is imposed as a disciplinary sanction as an alternative to dismissal.”
For the employee harmed by his suspension, there are legal steps he can take, adds Mélanie.
“They can take an unfair labor practice dispute to the Board of Conciliation, Mediation and Arbitration relating to the suspension.”
It is crucial that employees go through the terms and conditions of their employment as they are bound by them, advises the lawyer.
“Before signing an employment contract, an employee should carefully review the terms of the contract to ensure that they are reasonable and not overly onerous.
“At the beginning of the employment relationship, employees often sign a contract without having thought through the terms. Then, when it comes to resigning, the employee wishes to withdraw from certain agreed provisions, for example, a restriction of commercial commitment.”