BY Matlhatsi Ntlhoro AND Naledi Raseote
South Africa: Regulating employee conduct while working remotely
A new dawn has come in the world of employment where many South African employees are required to work from home as a measure to curb the rapid spread of the new life threatening Coronavirus (“COVID-19”). This raises two questions. The first is whether an employer can actually require an employee, who must stay at home, in order to comply with the lockdown regulations, to work from home? The second is, if the employer can require employees to do so, what disciplinary rules should apply in the event that misconduct is committed and how can they be enforced?
Whether an employer will be able to require an employee to work from home will, in the first place, be determined by the employee’s contract of employment. In the absence of such a provision in the contract of employment, the question would be whether or not an employer’s directive to an employee to work from home constitutes a reasonable order? It seems that, under the current lockdown circumstances, this would not be unreasonable. In terms of the reciprocal employer-employee relationship, an employee is obliged to render his or her services to an employer; and an employer is in turn, obliged to remunerate an employee for such services. If an employee refuses to render his or her services to the employer, an employer may also refuse to pay the employee their salary.
As a general principle, employees who are working from home should continue to conduct themselves as they would have on the employer’s premises. This includes for example, commencing work at the agreed time as stipulated in the contract of employment, not drinking alcohol during working hours, etc. These rules may need to be adapted to meet the circumstances of working remotely. For example, the time for the taking of meal breaks may need to be adjusted in accordance with an employee’s circumstances. In addition, new rules may have to be introduced, such as: being contactable at all times, telephonically and via email; touching base with a line manager daily; and the adaptation of work to ensure productivity.
In terms of the Labour Relations Act, 1995, Schedule 8 of the Code of Good Practice: Dismissal (the “Code”), employers and employees should treat each other with mutual respect. The Code also states that:
“...a premium is placed on both the employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees”
Employees who have been instructed to render their services remotely as opposed to at their employer’s premises, must endeavour to render such services satisfactorily and in accordance with the standard expected of them. If new rules are adopted or existing rules are amended, employers should consider adopting policies that regulate remote working and ensuring that employees are informed of these rules.
The fact that employees are confined to their homes and must work from home may mean that some existing disciplinary rules assume a greater importance. One obvious example is adherence to working hours. Another could be rules relating to the use of social media. Employees isolated at home, and whose workload may have diminished will seek to interact with friends and relatives on social media and may engage on topics that may land them in hot water for making unacceptable remarks on social media. When this happens, an employer may discipline an employee if the employer can prove that there is a connection between the employee’s conduct and bringing the company’s name into disrepute. There is therefore no reason why an employer cannot discipline an employee for misconduct committed while working remotely. This, of course raises the issue of procedural fairness. Item 4 of the Code sets flexible standards for procedural fairness. A procedure could be devised to meet these standards. The problem is, of course, that many employers have adopted disciplinary procedures that are far more formal and detailed and that may be impossible or impracticable to apply in the situation where an employee is working from home and is prevented from leaving his or her residence. It is submitted that, from a fairness perspective at least, a dismissal could nevertheless still be procedurally fair even if such a procedure is not followed, provided that the actual procedure followed is fair and complies with item 4 of the Code.
There is support for this view in part D to the Commission for Conciliation, Mediation and Arbitration Guidelines on Misconduct Arbitration, which clearly envisages that a disciplinary process can be fair despite the fact that it does not comply with the processes outlined in an employer’s policy.
Reviewed by Peter le Roux, an Executive Consultant in ENSafrica’s Employment department.
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COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.
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