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.
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.
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.Originally Posted by daveob
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
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.
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.
Anthony Sterne
www.acumenholdings.co.za
DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.
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 “what is and is not humanly possible and or acceptable”
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 “work thing” 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.
This is just my opinion on this post...
peace is a state of mind
Disclaimer: everything written by me can be considered as fictional.
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 Applicant’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 “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 day”. 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 employer’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 wife’s business. The question is whether he did in fact spend the time as alleged.
[4] [28] The video and Gilmore’s evidence establish that the Applicant did what the Respondent alleged.
[5] [29] The Applicant’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 Applicant’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 employer’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
· · 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 employee’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 employer’s workers. The arbitrator was of the view that the employee’s actions were “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 services…. [he had ] acted in conflict with the company and that this caused a breach in the relationship of trust”.
· · 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].
· · 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 employee’s participation in union activities, and the employee’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 Applicant’s conduct amounts to a conflict of interest. The evidence is that the Applicant was assisting in the conduct of his wife’s business which meant that he was not selling his employer’s goods. The Applicant’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 Applicant’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 Applicant’s conduct had breached the duty of trust and that he was no longer prepared to work with him. I suppose the difference between Kemp’s view and mine is that I do not have to work with the Applicant – 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 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.
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
Anthony Sterne
www.acumenholdings.co.za
DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.
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
Anthony Sterne
www.acumenholdings.co.za
DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.
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.
Anthony Sterne
www.acumenholdings.co.za
DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.
My first impression - Common law does quite well.
I'm filing this bit away for future reference -
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?"
Participation is voluntary.
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Moonlighting
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.
Last edited by Dave S; 13-Mar-10 at 09:27 AM. Reason: Spelling and grammer corrections
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