Businesses warned to think twice before asking employees to return to the office
Following a recent Labour Court judgment that highlighted the importance of proper consultation in such decisions, businesses are being urged to think twice when asking employees to return to the office.
According to legal experts at Bowmans law firm, employers must consider the legal and procedural implications of return-to-office (RTO) instructions to avoid claims of unfair dismissal or procedural misconduct.
Amandla Makhongwana, senior associate at Bowmans, and associate Layla Shah, warned that employers cannot simply terminate remote or hybrid working arrangements without sound justification and proper process.
“Since the Covid-19 pandemic, many employees whose duties allow for it, continue to work from home either on a permanent or hybrid basis,” they said.
“However, some employers have taken the decision to terminate such arrangements, insisting that their employees return to the office.”
This issue was highlighted in a Labour Court ruling on 21 May 2025. The court examined the fairness of an employee’s dismissal for failing to comply with a directive to return to the office.
The ruling has since outlined the key considerations for employers contemplating similar moves.
The employee in question had been working remotely from Paarl for over two years due to her son’s autoimmune condition, a situation that her employer accommodated during the height of the pandemic.
After that, the employer abruptly instructed her to report to the Cape Town office, citing a general decline in Covid-19 cases. Roux did not comply, and after a disciplinary inquiry, she was dismissed for gross insubordination.
The employee challenged her dismissal at the Commission for Conciliation, Mediation, and Arbitration (CCMA), which found the termination to be both substantively and procedurally unfair and awarded her eight months’ salary in compensation.
The company subsequently applied to the Labour Court to review and set aside the CCMA’s decision.
However, the court upheld the findings, stating that the conclusion reached by the commissioner fell within the bounds of reasonableness.
“The court found that while the instruction for the employee to return to the office may have been lawful, it was not reasonable,” said Bowmans.
The case serves as a warning
The evidence showed no pressing operational reason to end her remote work arrangement. The court noted that the sudden instruction came shortly after the employee attempted to lodge a grievance against two managers.
Their request for grievance forms was initially ignored, and a follow-up request was sent just one day before she was instructed to return to the office.
This sequence of events raised red flags for the commissioner, who viewed the instruction as retaliatory.
“The work-from-home arrangement was terminated without any engagement or consideration of Ms Roux’s personal circumstances,” Makhongwana and Shah explained.
“She was expected to return to the office without notice and without a substantiated operational need.”
Even more troubling was the court’s finding that Medici Energy had pre-determined Roux’s dismissal.
This was supported by internal communication with labour consultants, instructing the immediate termination of her employment.
The disciplinary notice, which accused the employee of “causing trouble” with colleagues and management, was deemed unrelated to her refusal to return to the office, further undermining the legitimacy of the dismissal.
The court also found additional procedural failings. The employee was denied the right to information relating to a second misconduct charge and prevented from being represented by their preferred representative, who the company claimed was a potential witness.
These actions, the court held, contributed to the procedural unfairness of her dismissal. The ruling serves as a strong reminder that the pandemic has left a lasting legacy in the form of remote and hybrid working norms.
As businesses grapple with shifting operational needs and growing conversations around work-life balance, mental health, and flexible working models, they must balance business imperatives and employee rights.
“RTO instructions must not only be reasonable but should also follow a process of consultation,” Bowmans advised.
“This ensures that employees understand the reasons behind such changes and allows for potential concerns to be addressed.”
“In certain cases, RTO demands may amount to a unilateral change to the terms and conditions of employment, in which case, employee consent may be required.”
In light of the legal and practical complexities involved, Bowmans encouraged businesses to seek legal advice before making decisions that could alter working arrangements.
“Given the tricky terrain, employers would do well to take legal advice before making changes,” they said.
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