Can you be dismissed for not returning to the office post Covid-19

With the national Covid-19 lockdown slowly becoming a thing of the past, many employers have asked employees to return to the office, full time or on a hybrid basis. But, employees have become used to working from home and some don’t want to return to the office. What happens if an employee refuses to return to the office and offers to continue to work from home?

Where employees were asked to work from home as a result of the Covid-19 pandemic and such remote work was not part of the agreed conditions of service either pre- or post-Covid 19, then an employee cannot refuse to return to the office when requested to do so by the employer, even if they are in a position to work effectively from home.

Of course an employee could negotiate with the employer to continue to work from home either permanently or on a hybrid basis as many employees still do, but ultimately, if not an agreed condition of service, an employee cannot refuse to return to the office if that is the demand of the employer. 

So, what happens if an employee refuses or ignores the requests of the employer to return to the office?

Firstly, an employee does not have an absolute right to refuse to return to the office, particularly if there is no unreasonable risk of infection or other threatening situation which could justify a failure to return. Any employee that then in such an instance fails or refuses to return to the office despite being instructed to do so by an employer will be acting unreasonably and may face charges of unauthorized leave, abscondment or even gross insubordination, which could lead to disciplinary sanctions, including dismissal.

The CCMA recently had cause to consider this question, where an employee was dismissed for failing to return to the office despite being requested by the employer to do so. In this case, the employee had relocated during the lockdown period and refused, despite repeated requests of the employer, to return to the office of the employer in Johannesburg and continued working from home. 
 
The Commissioner noted that the employee had failed to respond to the employer’s request for reasons why she could not return to work and had shown no remorse for her conduct. Accordingly, her conduct was unreasonable and dismissal was an appropriate sanction.

This confirms that an employee cannot act unreasonably and refuse to return to the office post Covid-19. Whether the employee offers to continue to work from home is also immaterial once an employee has been instructed to return to work, with any failure to do so opening the door for disciplinary action against the employee.

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).

November 22, 2022
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