As the COVID-19 pandemic lifts, normality slowly returns to SA inclusive of employees returning to the office. While some employees enjoyed remote working but want to return to the office, others have become accustomed to either solely remote working or a hybrid thereof, i.e. working from home and the office. While these working premises changes were necessary during the pandemic, it is no longer a stringent requirement, and employers are calling on their employees to return to the office. But what are the employers’ rights when employees refuse to return to the office?
Basic principle:
It is important to remember that the pandemic and remote working were (in most instances) the exception, not the rule.
In essence, where remote working was not part of the employment terms before the pandemic, an employee can not refuse to return to the office post the pandemic upon lawful instruction from their employer.
While the parties could negotiate specific remote working terms, these may be on a case-by-case basis. However, it is often not in the best interests of the employer to do so with its entire workforce. While some employees may have been more productive while working remotely or in hybrid systems, other employees have been struggling to balance their work/personal life. We have seen a spike in poor performance issues based on employees’ working remotely.
The distinction between working remotely and from the office:
Employers are encouraged to compile return to the office and remote working policies. Employees working remotely should be given a chance to transition back into working from the office. Remote working policies could also incorporate reasonable non-discriminatory limitations, i.e. employees who were recently or currently on performance improvement plans must work from the office for the foreseeable future to assist them during this period, or where an employee’s work can only be done in the office given the nature of their position.
Disciplinary action:
Where an employee refuses to return to the office after a lawful instruction to do so has been issued, the employer should, inter alia, (i) engage with the employee to determine the rationale for the employee not wishing to return to the office; (ii) check the terms of the signed employment contracts along with any pre-pandemic policies on remote working; and (iii) if necessary discipline the employee for unauthorised absence from work, alternatively for insubordination. The exact disciplinary action and allegation terms must be dealt with on a case-by-case basis.
Disciplinary action could also become necessary when employees are instructed to return to the office but continue to work remotely even if their performance is not an issue.
What the law says:
The CCMA has considered the issue of employees refusing to return to the office post the pandemic, and has confirmed that an employee can not act unreasonably by simply refusing to return to the office after being instructed to do so by the employer.
Should you require assistance with drafting return-to-office policies and general advice on how to deal with instances where employees refuse to return to work, please contact our offices.
Candace Bachmann – Associate Attorney
Justine Del Monte & Associates Incorporated
