Moonlighting refers to the situation where an employee hold a second job, whilst in the service of the employer.

The question I want to ask is whether the fact that the employee holds on a second job, with or without the consent and permission of the employer, warrants a conclusion that there exists a breakdown of the trust relationship between the employer and employee, which in turn would make the continued employment relationship intolerable. In other words: May I dismiss an employ who is moonlighting?

Moonlighting presupposes an employee offering services to two employers in exchange for reward. It may vary from an employee merely trying to raise extra cash, to a situation where the employee effectively – whether directly or indirectly – competes with the business of the employer thereby deriving secret profits.

I am of the opinion that we must first consider the employment contract and/or company policy. Thus, if the employment contract or policy prohibits moonlighting, then an employee who engages in it commits an offence that should be dealt with according to the applicable prescripts of that employment policy.

However, if the employment contract or policy requires that an employee should obtain prior permission from the employer before engaging in moonlighting, then the employer must ascertain whether the employee has not obtained such permission and deal with him accordingly.

In the absence of any provision from the employment contract or policy dealing with the issue of moonlighting, it will be legally wrong to discipline the employee on the basis of misconduct. Instead, the employer may have to investigate the impact that the moonlighting has had on the work normally carried out by the employee. Should it be found that moonlighting negatively affected the employee’s performance, then a disciplinary course to be followed would have to be the one of a form of incapacity known as ‘poor work performance’ for which item 9, schedule 8 of the Code of Good Practice: Dismissal (the Code) set out the necessary guidelines.

The absence of a clause or provision in an employment contract or policy prohibiting or regulating moonlighting, means absence of a sanction if an employee engages in moonlighting. As such, an employee who is found to have engaged in moonlighting cannot legally be accused of having broken the trust relationship merely by moonlighting.

I think that everyone will agree with me that moonlighting has practical implications of depriving the employer of the full attention and skilled services of its employees.

On the other hand, it is equally true that the employers cannot unreasonably deprive employees the right to engage in additional external remunerative employment where the intention is merely to gain extra cash as opposed to prejudicing the employee, provided permission is first sought, if moonlighting is regulated.

Thus, in order to prevent uncertainties, moonlighting has to be regulated and controlled. Policies must be put in place and their terms must be incorporated in the employment contract for employees to know and appreciate the consequences of breaching them.

Our courts cannot readily assume and accept the breakdown of the trust relationship – the employer have to present persuasive evidence thereof. I will over the next few days discuss some relevant case law on my blog, and you are welcome to follow my blog for a discussion of these cases.