Moonlighting and dismissal

[AndyD]

I don't see why it would really make a difference what job you were doing if you personally had prior security clearance.

[manhav]

I am amazed that this article attracted so much interest and comment.

The point I actually wanted to make, and I do apologize for this late submission, is that moonlighting per se does not necessarily constitute an element of dishonesty which would result in a breakdown of the trust relationship between the employer and the employee.

I want to thank sternelaw for his input by providing us with 2 actual CCMA cases regarding moonlighting.

In considering whether moonlighting constitutes dishonesty which resulted in the breakdown of the trust relationship between the employer and employee, it is my submission that regard would be given to the terms and conditions of the employment contract.

If the employment contract prohibits moonlighting, then the employer will be entitled to take disciplinary action against the relevant employee within the framework of its disciplinary code. I do not suggest that, even if it is found at a disciplinary hearing that the employee was busy moonlighting contrary to the provisions of the employment contract, dismissal is the proper sanction. I will discuss my reasons for this later in this post.

If the employment contract regulates moonlighting, meaning that the employee must first obtain the written consent of the employer prior to commencing with a second job, the employer may only take disciplinary action against the employee if it was established that the employee did not obtain the required consent. Again I do not suggest that dismissal is the proper sanction in such an instance.

But, on the other hand, should the employment contract remain silent on the aspect of moonlighting (in other words, it does not prohibit nor regulate such conduct), then the employer can not take disciplinary action against the employee on the ground of moonlighting.

If the employer wishes, in any of the 3 circumstances mentioned above, wish to dismiss the employee, he must be able to proof that moonlighting led to the irretrievable breakdown of the trust relationship and that a continued employment relationship cannot be sustained.

In the event of moonlighting, I submit that the employer must be able to proof some element of dishonesty. Some examples will be stealing time of the employer to moonlight, using the equipment of the employer to do private work, by neglecting or failing to perform work according to the required standards, etc.

[VirtuallyAssist]

I cannot see how a company can dismiss you for moonlighting (unless of course you are doing private jobs by taking away customers from your current employee).

In the USA many people hold up to 3 jobs at the same time. It is a matter of survival - if you cannot earn enough money from one job - you have to look for another to earn a little extra. I admire these people as it cannot be easy going from one job to another or working all weekend to make some more money.

Perhaps if these people were paid a little more each month, they would not need to look for moonlighting jobs.

[AndyD]

I think the difference here is that most of the comments have been about tradesmen as opposed to retailing staff. Tradesmen would be a lot more likely to use company transport, tools or materials illegally than retail staff. Even then I think if someone is working one fulltime job and two part time jobs then they're probably not performing as they should be in their fulltime job.

[scarborough.security]

I need help. I have an employee who is working for another security company. He has not informed me of his other position. He has stayed away from work for this company since 30/04/2010. He did receive a duty roster stating his duties with us. We have gone to collect him for duty but have been told that he is not home. He has made no effort to contact this office. I found out about his other employment by chance and contacted that company. They were not aware that he is employed by us.
please can anyone assist or advise me.

Mike

[manhav]

Please sent me an e-mail with a copy of his employment contract. I will then advice you as to possible steps against him, if any.

[sterne.law@gmail.com]

I suggest you by pass the potentially more tricky moonlighting issue and start a procedure for dismissal for absconding.

[Malc75]

I know this is a year late (well just over) I am an advertising sales person I sell ad space in a business to business magazines over the telephone for a company here in Cape Town. I have an opportunity to do the exact same thing for a company in the States however selling to clients for a lifestyle magazine in New York. I finish work at 5pm and do nothing all night except watch movies I am thinking of doing this to earn extra money. My view is yes they in the same industry however completely different clients and markets and I would be using my own resources and finances to fund my little home office! My question is am I doing something illegal by taking this job?

[Dave A]

What are the terms of your current employment contract?
What are the chances of you pre-empting a potential problem by asking your current employer if you could take this second job on?

[tec0]

I actually had a moonlighting case not too long ago. Firstly the company policy was none existent; the employee had reason to fear dismissal due to favouritism and that was before the company tried to force a newly written contract onto the employees in general.

The contract was drafted to incriminate employees and I had a real problem with that bit because verbal agreements are still an agreement. So in this case a lot of conflict due to neglect, victimization and random verbal agreements.

Fact 1> Employment contracts must be explained and signed on the day of employment. Or within a reasonable time frame.

Fact 2> Policies must be explained and signed by both the employee and employer. These policies include but are not limited to the employer’s rights and actions and that of the employee.

Fact 3> The employee has rights that include not to work in a dangerous place and or under conditions that may be harmful to her/him. Especially without training and or proper information and equipment.

Also remember your employee has a right to life. And if one pay and employee R300 a month for services and he/she seeks other employment after hours than they do so because they need the money. This is where reasonability comes into play. Simple: WHAT IS REASONABLE?

I am not saying moonlighting is right but there are conditions where it is reasonable for the employee to do so and there are conditions where the employee was unreasonable. This also happens.

So when you look at moonlighting remember the law also looks at the “human aspect” and what is “reasonable”