Remote and hybrid work arrangements have become a normal feature of modern employment, often benefitting both employers and employees. But what happens when an employer decides to end such an arrangement and instructs the employee to return to the office?  The recent Labour Court judgment in Medici Energy (Pty) Ltd v Bennet NO and Others (2025) illustrates that the answer is not always straightforward.

Background

Ms Dezi Roux had worked remotely for more than two years, a concession initially granted because of her son’s serious medical condition.

On 11 May 2022, Roux requested grievance forms to lodge complaints against two managers. Her initial request was ignored and HR only provided the forms after a follow-up request on 9 June, several weeks later.

The very next day, Friday 10 June 2022, the company instructed Roux to return to its Cape Town office from Monday 13 June. No consultation preceded the instruction. When Roux did not comply, she was dismissed for gross insubordination.

Substantive Unfairness

At arbitration, the commissioner found the instruction unreasonable and arbitrary. He found that:

1. a genuine work-from-home agreement existed;
2. the notice to return to work was inadequate; and
3. the alleged justification of “a decline in COVID-19 cases” was not acceptable.

The timing, immediately after Roux had pursued a grievance, suggested a retaliatory motive rather than a legitimate operational requirement. The commissioner concluded that the dismissal was substantively unfair.

On review, the company argued that no reasonable commissioner could have reached this conclusion. The Labour Court disagreed. It held that the commissioner’s findings were well grounded in the evidence.

Procedural Unfairness

The commissioner also identified procedural defects: Roux was not only denied clarity on one of the misconduct charges, but also refused the representative of her choice at the hearing on the unfounded basis that he might also be called as a witness.

The Labour Court agreed, confirming that the dismissal was not only substantively unfair but also procedurally unfair.

Judgement

The Labour Court dismissed the company’s review application and upheld the CCMA award of eight months’ compensation to Roux.

Legal Principles Affirmed

The Medici Energy case affirms the following important principles:

• Lawful and Reasonable Instructions: Workplace instructions, including an instruction to return to the office, must be lawful and objectively reasonable. Abrupt changes to long-standing arrangements, without consultation or notice, may be unfair.
• Retaliation and Punitive Intent: Disciplinary action taken soon after an employee exercises a legal right – such as lodging a grievance – may be deemed retaliatory and substantively unfair.
• Procedural Fairness: Employees are entitled to be notified of clear charges and to be represented by a representative of their choice, even where that representative may also be a witness.

Lessons and Recommendations

To minimise disputes over remote work arrangements, employers would be well advised to adopt the following practices:

• Formalise agreements: Document remote-work arrangements in a written agreement to ensure clarity and mutual understanding. (The terms may vary depending on the circumstances.)
• Include a termination clause: Specify that the employer may terminate the arrangement on reasonable notice as specified in the agreement.
• Act reasonably in the absence of a clear agreement: Where no formal agreement exists, employers must ensure that any discontinuation of, or changes to, remote-working arrangements are based on legitimate operational needs. There must be meaningful consultation and employees must be given reasonable notice.
• Respond appropriately if the employee refuses to return: Where an employee refuses to resume office-based work despite prior consultation and reasonable notice, the employer may consider several procedural options. The appropriate course—be it disciplinary action, an incapacity process, or retrenchment—will depend on the specific circumstances. If the correct approach is unclear, seeking legal advice is recommended.

Jan Truter for www.labourwise.co.za