What if the employee working from home, does not work at home?

If your business has employees working from home, you may be concerned about whether your employees are in fact working their required hours, or if they may instead be “stealing time” from your business. Should companies merely accept this as the new world of work due to the pandemic, or can a company act against such employees?

Yes, the Covid-19 pandemic has affected many businesses and disrupted traditional work arrangements. However, as much as businesses have had to comply with Covid-19 regulations, your employees are still responsible for providing their services to their employer, subject of course to restraints that Covid-19 regulations impose.

From an employer’s perspective, it is the employer’s responsibility and right to put in place reasonable work requirements for staff working from home and to expect its employees to adhere to the agreed working hours and standards of work. In cases where employees are adequately empowered to work from home and are capable of meeting the standard of work that’s required, employees failing to do so could face the same disciplinary action as in the case of an employee at the office who doesn’t meet his/her workplace obligations.

Because an employment relationship between employee and employer is based on mutual trust, it is fair and reasonable for an employer to expect employees to render the services that they have agreed to on the agreed days and times, and to follow the rules of work. Employees in turn have a duty to act in good faith towards their employer, which includes being loyal and diligent in performing their work.

Should it happen that an employee does not meet this duty of good faith, their conduct can be disciplined by the employer. However, an employer has to act fairly towards its employees and must therefore have good reasons for taking disciplinary action and follow a fair procedure. 

When an employee is not providing the desired work output and fails to meet the required standard or adhere to agreed working hours because of remote working, the employer should first confirm that the employee’s conduct does not meet their requirements, then assess whether this is due to operational issues which can in fact be addressed, and lastly, inform the employee of the employer’s concerns and ask the employee to meet the required standards. Generally, only once the employer has raised their concerns with the employee and has made sure that they have from their side reasonably assisted with the necessary work arrangements, can the employer take disciplinary steps against an employee still failing to meet the required work standards.

As always, the facts of each case and the severity of the employee’s transgression will be taken into account together with the actions of the employer to determine whether any disciplinary action is justified. We recommend that you contact your attorney or labour specialist to help you to correctly address the concerns you have about your employees working from home.

February 8, 2022

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