Spotlight on Dual Employment

Multitasking is often celebrated as a virtue, but a ruling by the Labour Court has cast a spotlight on the complex interplay between the rights of employees to seek additional employment, and their fiduciary duties to their primary employers.

The Labour Court recently held that an employee violated her fiduciary duty and her employer’s policies by not disclosing her concurrent full-time employment. This case serves as a cautionary tale, emphasising the importance of loyalty to the primary employer and adherence to both legal and internal policy frameworks to maintain a transparent and conflict-free work environment.

The employee commenced part-time employment at the Wits Business School, under a 50% contract, while also employed at Alexander Forbes. In 2018, the employee resigned from Alexander Forbes and transitioned to a full-time lecturer position at the Wits Business School. 

Shortly after joining Wits Business School full-time, the employee also took up full-time employment with Kantar South Africa (Pty) Ltd as an accounts director, working office hours Monday to Friday and earning a higher salary than at Wits Business School.

The employee was notified by Wits Business School to attend a disciplinary enquiry for charges of gross misconduct for taking up full-time employment at Kantar while still fully employed by the university, without the knowledge or authority of the university. The employee was found guilty of the charge against her and dismissed by the Wits Business School.

The employee referred an unfair dismissal dispute to the CCMA who concluded that the dismissal was both substantively and procedurally fair.

Aggrieved by the outcome the employee referred the matter to the Labour Court.

The Labour Court held that an employee is expected to act with good faith towards their employer, serving honestly and faithfully and not working against the employer’s interests. An employee has a fiduciary duty to not engage in activities that conflict with their employer’s interests.

Engaging in external employment without disclosure or approval from an employer, especially when such employment conflicts with the employee’s duties, violated the employer’s policy and the employee’s duty of good faith. Employees are required to disclose any external employment interests upfront to enable the employer to assess and manage potential conflicts of interest.

The determination of whether an employee’s external activities constitute a conflict of interest is the employer’s prerogative, not the employee’s subjective assessment. The employee violated the policy on the declaration of interests and her fiduciary duty to the Wits Business School by not disclosing her full-time employment with Kantar.

The employee’s failure to disclose her employment with Kantar and seeking approval for it constituted gross misconduct. It was not humanly possible for the employee to fulfil her obligations under both full-time employment contracts effectively.

The court held that the employee’s contention that she had time to declare her employment with Kantar was not substantiated, highlighting her ignorance of the pertinent clause requiring immediate disclosure of material changes in association. The employee’s dismissal by the Wits Business School for gross misconduct was both substantively and procedurally fair.

The judgment highlights a crucial aspect of employment law, particularly regarding the balance between an employee’s rights to engage in additional employment and the obligations they owe to their primary employer. While the law generally does not forbid holding multiple jobs, this judgment underscores several key limitations:

· First, employees must adhere to any contractual or policy requirements to disclose secondary employment, particularly when it may present a conflict of interest. In the employee’s case, her failure to disclose her employment with Kantar South Africa, as required by the university’s policy, was a significant factor in the court’s decision;

·  Second, the court’s judgment also brings to light the practical implications of holding two full-time positions. It deemed it virtually impossible for the employee to fulfil her responsibilities effectively in both roles, thus questioning her ability to maintain the standard of performance expected by her primary employer;

·  Third, employees have an inherent duty to act in the best interests of their employer and to avoid situations where their personal interests might conflict with their professional obligations. This case serves as a reminder that an employee’s primary loyalty should lie with their principal employer and any secondary employment should not compromise this loyalty; and

·  Fourth, the judgment emphasises the importance of complying with both the legal framework and internal policies of the primary employer. These frameworks are often in place to protect the interests of both the employer and the employee and ensure a transparent and conflict-free work environment.

Academic roles often require extensive preparation, research and teaching. This includes not only time spent in lectures and seminars but also significant time for curriculum development, grading and student consultations. Academics are usually expected to engage in research, which demands deep focus, time for experimentation or study, analysis and publishing. Research activities, especially, are time-consuming.

Beyond teaching and research, academics often have administrative responsibilities. These can include attending meetings, participating in committees and contributing to the governance and strategic planning of the institution. Academic schedules, while sometimes offering more flexibility than typical office jobs, also require availability for student needs, ad-hoc meetings and academic events.

The nature of academic work requires a high level of intellectual engagement and emotional investment. Balancing this with another full-time role could lead to burnout, reduced productivity and a decline in the quality of work in both positions. As such, academic institutions generally have policies restricting or regulating external employment to ensure that their academic’s primary focus remains on their institutional responsibilities.

In academic contexts, where the demands of teaching, research and administration require significant dedication and intellectual engagement, the ruling has particular resonance. It reaffirms the need for policies that regulate external employment, ensuring that academics can maintain their focus on institutional responsibilities without the distraction or conflict of interest posed by additional full-time roles. 

Ultimately, this judgment serves as a cautionary tale, highlighting the delicate balance between pursuing multiple professional avenues and upholding the integrity and responsibilities of an employee’s primary employment. 

Marthinus van Staden