End of work-from-home warning for South Africa
A recent Labour Court judgment has delivered another warning to employers in South Africa who are considering terminating work-from-home arrangements: contracts and negotiation are paramount.
The case involved an employee working for a firm in Gauteng who semigrated to the Western Cape during the COVID-19 pandemic to work remotely, with the employer’s approval.
A key point of contention arose when it was found that the employee in question saw the move as permanent, while the employer understood it to be a temporary arrangement.
This came to a head in late 2023, where, following significant business losses, the employer decided to unilaterally end all work-from-home arrangements and required all staff to return to the office within two months.
The employee requested an extension and permission to continue working remotely until March 2024, but this was denied, and they were required to return to Gauteng in January 2024.
According to law firm ENS, following the return-to-office instruction, the employee found themselves increasingly excluded from key decisions and management functions, and communication with management deteriorated.
Shortly after the directive, the employee submitted a medical certificate for anxiety and depression, supported by their doctor.
HR initially acknowledged their sick leave and indicated they would be paid, but this was then withdrawn.
The employee was then accused of malingering, had their salary docked and was threatened with disciplinary action.
The employee resigned with immediate effect, citing intolerable working conditions, and referred a constructive dismissal dispute to the CCMA.
The commissioner of the CCMA initially found in favour of the employer, but on review, the Labour Court overturned this decision.
ENS said the Labour Court found that the employer’s abrupt reveral of sick leave, its accusatory communications, and salary reduction all constituted a breach of implied terms of mutual trust and confidence in the employment contract.
While the employee resigned, the court found this wasn’t voluntary, but rather a reasonable response to the intolerable conditions created by the employer’s conduct.
The court awarded the employee compensation equivalent to three months’ salary plus the unpaid portion of their November 2023 remuneration, totaling over R310,500.
The work from home problem
While the judgement dealt with the employer’s behaviour after the work-from-home arrangements with withdrawn, it is evident that problems were arising as a result of the remote work situation.
ENS said that it is critical for employers to clearly document the terms of any remote work arrangements, especially the conditions for terminations when relocation is involved.
The Labour Court has repeatedly shown that it will rule against employers who unilaterally decide to adopt return-to-office (RTO) policies without proper consultation or negotiation with affected employees.
The court has also shown a clear move against employers who try to use these orders as an excuse punish employees who do not abide by the instruction or insist on negotiating the terms.
There is no specific provision for remote work in South Africa’s labour laws, including the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA).
Instead, provisions for remote work, hybrid work and virtual work are determined when negotiating and signing contracts.
If employers have negotiated working conditions that facilitate remote or hybrid work, they cannot unilaterally change these without renegotiating with employees.
Negotiated work-from-home agreements are not simple policies that can be flipped and changed, and employers cannot use them as tools to retaliate against employees or dismiss them.
“While the burden of proof on an employee in a constructive dismissal claim is high, and claims of intolerability are notoriously difficult to prove, actions that undermine trust can expose employers to constructive dismissal claims.” ENS said.
These actions include abrupt policy changes or reversals, unfounded accusations, excluding an employee and the inconsistent application of rules.
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