By Dylan Greenstone
The COVID-19 pandemic caused an immense shift in the socioeconomic climate of South Africa, impacting its economy and various industries within it. Employers and employees alike had to evolve their thinking in order to adapt to the new economic landscape left behind by the pandemic. The dramatic change caused many South Africans to realise the importance of alternative sources of income which caused an increase in the introduction of side businesses and moonlighting.
What Is Moonlighting
Moonlighting refers to acquiring a second occupation, typically in secret, in addition to one’s regular employment. However, employees must be aware of the impact moonlighting may have on the employer-employee relationship in the main occupation. Of significant importance is whether the second form of occupation potentially conflicts with the main employer’s interests.
Employee’s Duty Of Good Faith
The employee’s duty of good faith is recognised in South African common law and requires employees to not behave in a manner that is determinantal to the employer’s enterprise or interests. An employee breaches the implied duty of good faith towards his employers if he is aware of but remains silent about information which undermines his employer’s business interests.
The Scope Of Good Faith
The Labour Appeal Court in Bakenrug Meat (Pty) t/a Joostenberg Meat Ltd2 confirmed that the employee’s good faith duties extended beyond the scope of an actual conflict of interest and included any potential conflict that may arise. The court stated that “employees act in bad faith if a conflict of interest may arise even though no real competition actually exists“. The court continued by stating that the employee proved that they were able to discharge their duties to the employer while continuing their side business, which was irrelevant to the case. The employee failed to disclose material information and therefore violated their duty of good faith.
Conclusion
An employee has a duty of good faith toward their employer. The duty of good faith includes disclosing material information that may impact the employer’s business interests. Accordingly, a potential conflict of interest arising from the actions of an employee without its disclosure would result in a breach of the good faith duties owed to the employer by the employee and may result in a fair dismissal.
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