Author: Andile Mphale– Candidate Attorney
Supervised by: Lavery Modise– Consultant
The use of social media has many benefits; one of them being the creation of work and income opportunities, such as doing promotional work on social media. Promotional work on social media has also given rise to the term “influencer”. An influencer is someone with a substantial following or a notable online presence, who can influence potential consumers into purchasing a product or service through social media endorsements or recommendations and receive a reward for that.
There are influencers who do promotional work on social media on a full-time basis and make a living from it. There are also influencers who do promotional work on social media on a part-time basis while having full-time jobs. This brings up the question of whether engaging in promotional work on social media while having a full-time job, could be considered moonlighting? The significance of this question lies in the increasing number of individuals engaging in additional and alternative forms of work to supplement their income from their full-time jobs amidst the tough economic climate.
Moonlighting
There is no legal definition of moonlighting, but in simple terms, it is when an employee undertakes to offer additional services or does additional work, usually outside the work hours of the primary employer, for another employer in exchange for compensation.
In Bakenrug Meat (Pty) t/a Joostenberg Meat Ltd v The Commission for Conciliation Mediation and Arbitration and Others [2022] JDR 0102, the Labour Appeal Court (LAC) dealt with the issue of moonlighting when it had to determine the scope of the duty of good faith owed by an employee to an employer. In this case, the employee worked for a business that produced and sold a range of meat products while simultaneously operating a business of her own that marketed dried meat products. The employee was dismissed for dishonesty for not disclosing to the employer that she operated a business while employed.
The LAC found her dismissal to be fair, and in arriving at this decision, the Court held that, notwithstanding the fact that the employee was able to discharge her duties to the employer, she was employed as a sales representative for a business that involved the sale of meat products while conducting a business on the side that also involved the sale of meat products. Because of her failure to disclose this material activity to her employer, she was found to have manifestly acted in violation of her duty of good faith to her employer.
The above case illustrates that an employee can be considered to be moonlighting even when the additional work they undertake is not a normal job in the strict sense but runs a business instead or even provides training on the side, as was the case in Martin & East (Pty) Ltd v Bulbring NO and Others (C1051/14) [2016] ZALCCT 2; [2016] 5 BLLR 475 (LC) (2 January 2016). Therefore, conducting promotional work on social media may be considered moonlighting. However, each case must be assessed on its own merits, and various factors will be considered.
Employers’ Concerns
Employers’ concerns regarding employees who conduct promotional work on social media are warranted for the following reasons:
Employees who engage in promotional work on social media for other businesses/brands/organisations may inadvertently promote competitors of their employer, thereby creating a conflict of interest. As employees have a duty to act in good faith towards their employer, which includes the duty to protect and enhance the employer’s interests, doing promotional work on social media for a competitor may be in breach of this duty.
When employees enter into an employment contract with an employer, they commit to dedicating their time and services to the employer; thus, engaging in additional activities that may interfere with this duty and possibly impact on the employee’s productivity becomes unfair to the employer.
It is also generally understood that the use of social media by employees poses a risk to the employer when employees misuse social media. This risk is even higher for influencers, as they have built a large following on social media and are held to higher standards. When an employee, who happens to be an influencer, makes inappropriate posts, this may bring the employer’s name into disrepute and cause reputational damage, even if the employee is acting on their own accord.
Approach
It is imperative for employers to establish clear written guidelines regarding the permissibility of moonlighting and the circumstances in which it may be allowed. This can be done by incorporating a clause in the employment contract that either strictly prohibits moonlighting or requires the employee to disclose their intention to engage in additional work and request the necessary consent to do so. Employers should also have a rule or a policy in place that addresses the issue and provide training or ensure that the employees are aware of and have knowledge of such a rule or policy.
Employees, on the other hand, who intend to engage in promotional work on social media should ensure that they disclose their intention to the employer to allow the employer to assess the possibilities of a conflict of interest.
When approaching this issue, employers are further advised to not, without good reason or cause, withhold consent that allows employees to do promotional work, as a rule that restricts an employee unreasonably can be found to be unenforceable. Furthermore, and depending on the organisation/business, having influencers at your workplace could work to the employer’s advantage for marketing and branding purposes.
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