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25-April 2022 blog img

Entering the third year of the Covid pandemic, businesses that shifted from being office-based to being work-from-home based are now reporting that they are experiencing challenges with remote working rules. 

There is a growing concern that remote employees are not in fact working their required hours and are guilty of abusing their new flexibility for second jobs or for personal matters. 

A duty to act in good faith…

The relationship between the two parties in an employment relationship i.e. employer and employee, is based on mutual trust.  From the employer’s perspective, there is a reasonable expectation that the employee will render their services during the hours agreed and continue to follow the employment conduct rules set out by the employer, notwithstanding that he/she is working remote.  There is a duty to act in good faith incumbent upon the employee – he/she is expected to be loyal and diligent in the performance of their work, whether remote or in office. 

Where an employee fails to act in good faith, despite the employer conducting themselves in a fair and procedurally fair manner towards the employee, the employer has the right to discipline the employee concerned.  What is especially important under these circumstances, is the procedure that is followed by the employer, since working conditions under pandemic conditions are unavoidably impacted for employees that are working remote.

Getting your procedure right…

Should it arise that your employee is not delivering the desired work output, failing to meet the required standards, or not adhering to agreed working hours, the employer should:

  1. Ascertain with certainty that the employee conduct has failed to meet their requirements.
  2. Understand whether this failure is due to operational issues that could be addressed, and if so, duly resolve them.
  3. If there are no operational issues causing the performance issue, inform the employee of your concerns as employer and instruct that the employee meets your standards.
Once you as the employer have raised your concerns and put in place reasonable measures to assist the employee to work effectively on a remote basis, it would be reasonable to discipline an employee that persists in failing to meet your required work standards.

Where disciplinary steps are taken resulting in dismissal, it is important to understand that the CCMA (were the matter to be referred) would consider the facts of each case, the severity of the transgression and actions taken by the employer to assess whether the disciplinary action is justified. 

We would encourage our clients to engage their labour professionals on a case-by-case basis in dealing with such situations to ensure the decisions reached and action taken can be adequately defended, should a dismissal on such grounds be challenged.

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