“Back to the Office”… It is not that simple
Following the Covid-19 pandemic, it is not unusual that many employees across the world have become accustomed to the work-from-home lifestyle. The pandemic accelerated the shift to remote work and highlighted its unique benefits, and for many jobseekers this type of work arrangement has become the preferred choice.
However, there has been a noticeable shift away from work-from-home arrangements. Head of Asset Management at Growthpoint Properties shared that they have seen a significant increase in the demand for parking space at office buildings, so too the surge in traffic volumes and longer commuting times all point to pre-pandemic times. Across major sectors in the country, companies have instructed their staff members to return to the office.
The question beckons; can employers legally order their employees to return to the office?
Director of Employment Law at Cliffe Dekker Hofmeyr (CDH), Yvonne Mfeka, is cautioning employers against pushing return-to-office mandates. Although employers reserve the right to make changes in the workplace, it must be done lawfully and fairly. In the absence of specific legislation governing remote working arrangements, the Labour Relations Act (LRA), the Basic Conditions of Employment Act (BCEA) and employment contracts should be referred to as a guideline in this circumstance.
Whether or not an employer can mandate employees to return to the office comes down to the specific conditions of employment stipulated in an employee’s contract of employment. The BCEA legislates that employers must provide employees with the written particulars of their employment including the place(s) where the employee will be working.
Scenario 1:
An employee’s contract of employment explicitly states that the place of work is “remote working”.
- The employer is bound by the written contractual agreement.
- If the employer enforces a unilateral return-to-office order, it would be a breach of contract.
Scenario 2:
An employee’s contract of employment expressly states that the office is the place of work and/or that the employer retains the right to determine the place of work.
- The employer has the contractual right to enforce a unilateral return-to-office order.
- HOWEVER, this is still subject to the employer acting fairly and reasonably in this instance. For example, an employer cannot instruct some employees to return to the office and allow others to work from home based on any arbitrary grounds.
- The best practice to follow if an employer wants to make changes to employees’ conditions of employment is to consult and/or negotiate with employees.
In Medici Energy (Pty) Ltd v Bennet NO and Others (C89/2023) [2025] ZALCCT 34 the Labour Court issued a judgement on the 21st of May 2025 that contemplates the fairness of an employee’s dismissal for failing to comply with their employer’s return-to-office instruction.
Ms Desiree Roux, a sales executive at Medici Energy, had been allowed to work remotely from Paarl for over two years due to her son’s autoimmune condition during the Covid-19 pandemic. On 10 June 2022, she was instructed to return to the Cape Town office by 13 June. She did not comply with this instruction and was dismissed on 28 July 2022 after a disciplinary inquiry found her guilty of gross insubordination because of her failure to follow a lawful and reasonable instruction to return to the office.
Ms Roux challenged the fairness of her dismissal at the CCMA, which ruled it substantively and procedurally unfair and awarded her eight months’ compensation. Medici Energy contested the CCMA’s decision in the Labour Court, but the review application was unsuccessful.
The Labour Court upheld the CCMA’s ruling, finding the instruction for Ms Roux to return to the office lawful but unreasonable. Evidence suggested it might have been a retaliation from the employer’s side, because of her attempt to file a grievance against two managers. The Labour Court agreed with the commissioner and noted the following:
- The instruction lacked proper notice and justification for the termination of her standing agreement to work from home.
- There was no evidence from the employer’s side to suggest that the remote arrangement was becoming problematic.
- The dismissal appeared pre-determined and linked to unrelated interpersonal issues as the company instructed their labour consultant to terminate the working relationship with immediate effect. The Court also found that the timing between Ms Roux’s request for formal grievance documentation and the instruction to return to the office was condemning.
- Medici Energy refused to provide Ms Roux with any details related to a second charge of misconduct and prevented her from electing a representative of her choice. The commissioner found that the dismissal, already substantively unfair, was also procedurally unfair, and the Labour Court upheld this ruling.
This case sends a clear message to employers: return-to-office instructions must not only be lawful and reasonable, but it should also follow a process of consultation with employees.
Work-from-home agreements are not just a simple policy that can be changed at will and employers cannot issue return to work instructions in isolation and then use failure to comply with the instruction as justifiable reasons to take disciplinary action or even dismiss an employee.
However, an employer can reasonably expect of employees to return to the office if the reason for returning is based on the operational requirements of the organisation. For example, in early 2023, Amazon mandated that their corporate employees return to the office after working from home during the outbreak of the COVID-19 pandemic. CEO, Andy Jassy, motivated this decision by highlighting the operational and business needs of the company, e.g., the need for collaboration between the cross-functional teams in their business model. If this instruction is given consistently, the employee was not employed on a work-from-home basis and the employer is able to show a true operational requirement, the employer may take disciplinary action in the event of refusal to comply.
Given the complexities involved, employers are strongly encouraged to seek professional guidance before implementing any return-to-office mandates. If you need support in reviewing your policies or managing the consultation process, our expert consultants are here to assist.
Article written by Jané Theron
Sources:
https://businesstech.co.za/news/business/816199/work-from-home-warning-in-south-africa/
https://businesstech.co.za/news/business/828204/work-from-home-warning-for-south-africa/