Juggling Side Gigs and Employee Loyalty in Tough Times
Loads of folks these days are taking on side hustles just to make ends meet. The South African economy is pushing people to find extra ways to earn money so they can live comfortably and afford all their necessities each month.
Now, when it comes to your job, there’s a give-and-take between you and your boss. It’s like an unwritten rule that both of you should act in good faith. This means you, as the employee, are expected to tell your boss if you know something that could harm their business.
If you know something that could hurt your employer’s business and you keep quiet about it, you’re actually breaking that unwritten rule of good faith. And if that happens, your boss could be perfectly within their rights to fire you.
Further, the case of Bakenrug Meat (PTY) Ltd t/a Joostenberg Meat v CCMA and Others enforced some restrictions on employees to operate independent businesses whilst being employed. The case involves the applicant operating a business whilst being employed as a sales representative by her employer. The employee was dismissed based on the fact that the employee was producing and selling meat products similar to those of the employer, which caused the employee to be found guilty of a charge of dishonesty.
The employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (hereafter “CCMA”). The CCMA awarded that the dismissal was substantively fair and stated that the employee operated a formal business with at least one employee from rented premises. Further, the CCMA stated that the employee had to inform her employer about her side business to establish whether a conflict of interest might have persisted. Therefore, the mere fact that the employee assumed that her employer was aware of her side business was unacceptable, resulting in the employee acting dishonestly and unacceptably.
The employee undertook the award of the CCMA to the Labour Court for review. The Labour Court found that the dismissal was substantively unfair and the award of the CCMA was set aside. The reasons listed by the Labour Court were the following: Firstly, no duty persisted between the employee and the employer for the employee to inform the employer of the potential conflict. In this regard, it was only a prerequisite if there was a potential conflict of competition of some sort. Secondly, the employee operated her business on weekends, and there was no nexus that her side business negatively affected her work performance towards the employer during the week. Therefore, the evidence failed to portray that the employee was guilty of the charge of dishonesty.
The matter was brought before the Labour Appeal Court for consideration. The Labour Appeal Court found that the employee had a duty to act in good faith by informing her employer of her side business and the material activities taking place therein. The Labour Appeal Court found that the dismissal was substantively fair and that the employee failed to inform her employer of her side business conducting the same material activities as her employer. Thus, the order of the Labour Court is set aside, and the dismissal persists.
Kindly contact our office if you require further clarification or assistance in respect of a dismissal dispute.
Shervona Tia Marshall
Associate
shervona@bbplaw.attorney
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