If an employee is found to have done private work under the company’s name during the lockdown, which prohibited a company from operating, the employee might face serious disciplinary action. For example, a Plumber contacts the employer’s clients under level 5 Lockdown or a Hairdresser under Level 5, 4 or 3 lockdown conducts private work at the homes of the employer’s clients.
Does a breach in conflict of interest warrant a dismissal as a sanction? An employee in terms of common-law requirements is expected to act in the furtherance of the employer’s business interest. If an employee fails to act in good faith and instead acts in bad faith by competing with the employer’s business or conducts private business under the company name without permission, it constitutes a conflict of interest.
In Arno’s Plumbing vs L Ziraya (GATW16014-16), Commissioner S Ramushowana found that a Plumber (Mr. L Ziraya) who contacted the employer’s clients and offered to do private jobs which are against the insurance rules and company conduct, might lead to the employer losing business. The Applicant received money for installing a geyser, and the dismissal was upheld.
The Industrial Court in Lubbers v Santech Engineering (a division of Scaw Metals) found that conflict of interest, even if it does not result in real competition between the employee’s conduct and the employers business is held to be misconduct that warrants or justifies dismissal even if the conduct does not amount to fraud, (see Dell v Seton SA (Pty) Ltd & others  9 BLLR 846 (LAC).
The Courts will be guided by Item 3 (5) of the Code of Schedule 8 of the LRA which reads as follows: “When deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct consider factors such as the employee’s circumstances, the nature of the job and the circumstances of the infringement itself”.
COVID 19 does not take away the employee’s responsibility to act in good faith towards his employer and not to compete with his employer’s business or conduct private business. Employers must have moonlighting clauses / or conflict of interest clauses in their employment contracts in order to prevent employees from conducting private business.
It could have severe consequences for the company should they be in breach of the COVID 19 Regulations due to an employee’s conduct. Should it come to the employer’s attention that an employee did indeed conduct private business during the lockdown and or contacted the employer’s clients in order to conduct private business, which is the same or similar as that of his/her employer and causes a conflict of interest, disciplinary action should be instituted.
Article by: Anesta Kruger
Dispute Resolution Official – Durban