Work from home warning for South Africa

Businesses in South Africa are increasingly terminating work-from-home policies and adopting return-to-office (RTO) orders, but legal experts warn that they should proceed with caution.

This is because the Labour Court has already shown that it will rule against employers who unilaterally decide to adopt RTO, or who try to use it as an excuse punish employees who do not abide by the order.

According to legal experts from law firm Bowmans, recent Labour Court judgements confirmed that RTO instructions by employers need to be reasonable and should follow a process of consultation.

This would ensure that employees have the benefit of interrogating the reasons for the proposed change in working arrangements and properly understand the employer’s position, they said.

It would also mitigate the risk of unfairness claims down the line, especially if the employers take punitive measures against employees who refuse to return to the office.

The most recent case took place May 2025, where the Labour Court issued a judgment regarding the fairness of an employee’s dismissal for failing to comply with the employer’s return to office direction.

The case related to a work-from-home agreement between an employee and their managers during the Covid-19 pandemic, where they were allowed to work remotely for health reasons.

When the pandemic started to wane, the employee was ordered to report back to the office, but they did not follow the order.

The employee was dismissed following a disciplinary inquiry into allegations of gross misconduct relating to her failure to follow the instruction to return to the office.

However, the employee challenged the fairness of the dismissal. The Commission for Conciliation, Mediation and Arbitration (CCMA) agreed that the dismissal was both substantively and procedurally unfair.

The employers were aggrieved by the CCMA’s decision and initiated a review application with the Labour Court.

Return to work orders cannot be unreasonable

According to Bowmans, the Labour Court agreed with the CCMA’s findings, noting that the RTO order was given without any substantiated or pressing reason for the termination of the remote work agreement.

While the order itself was lawful, it was unreasonable, the firm said. It added that the termination of the remote work agreement was done without any consultation with the employee.

“(The employee) was expected to return to the office on no notice and without any substantiated and pressing reason for the termination of a longstanding agreement for them to work from home,” Bowmans said.

There were other factors at play in the case—not related to the work from home and RTO order—that also pointed to the instruction being used a tool for retailation against the employee and as an excuse to dismiss them.

These factors outline further how employers need to be extra careful in how they go about getting workers back to the office.

Bowmans said that the key takeaway and warning for employers is that the balance between employees’ interests in remote or hybrid-working and the employers’ operational requirements requires ongoing engagement.

“This becomes more relevant when the employer contemplates changing such arrangements to revert to full-time office attendance,” it said.

“In certain circumstances, an RTO instruction may amount to a unilateral change in terms and conditions of employment, and employees’ consent may be needed.”

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.

The wider implication of the latest case is that 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.