Introduction
Working from home became an established practice at many workplaces during the COVID-19 pandemic and has continued since. However, as employers increasingly require employees to return to the office, an important labour-law question arises: can an employer unilaterally withdraw an established remote-working arrangement?
The answer depends on the employment contract, the nature of the arrangement and the circumstances surrounding the proposed change.
Is Working From Home a Contractual Right?
South African labour law does not provide an unconditional right to work from home. The employee’s contract, workplace policies and any subsequent agreements must be considered.
Where remote work forms part of the contractual terms and conditions of employment, an employer may not necessarily withdraw it unilaterally. However, where working from home was a temporary or discretionary arrangement, the employer may have greater flexibility, depending on the applicable contractual provisions.
What Does the Labour Court Say?
In Medici Energy (Pty) Ltd v Bennet NO and Others [2025] ZALCCT 34, the Labour Court considered a dispute arising from an employer’s instruction that an employee return to the office after working from home under an established arrangement.
The employee refused to comply and was dismissed for alleged gross insubordination. The Court dismissed the employer’s review application, leaving the arbitration award in the employee’s favour intact.
The case illustrates that an employer cannot rely on managerial authority alone to justify every return-to-office instruction. The reasonableness of the instruction, the existing arrangement and the surrounding circumstances are relevant.
The judgment does not, however, establish that all remote-working arrangements are permanent or cannot be changed.
Must an Employer Consult the Employee?
Employers may have legitimate operational reasons for requiring office attendance, including supervision, collaboration, confidentiality and customer service.
Nevertheless, where a proposed change affects contractual terms and conditions, employers should establish their legal position before implementing it. Consultation and an attempt to reach agreement are particularly important where remote work was contractually agreed.
Alternatives such as hybrid working, phased attendance or designated office days may provide practical solutions.
Can an Employee Be Disciplined for Refusing?
Not every refusal to return to the office automatically constitutes insubordination.
Before taking disciplinary action, an employer should establish whether the instruction is lawful and reasonable, whether the contract permits the change, and whether any relevant personal circumstances or accommodation requirements have been considered.
Employees should likewise avoid assuming that they can ignore every return-to-office instruction. The circumstances and available legal remedies must be assessed individually.
Section 64(4) of the Labour Relations Act 66 of 1995 provides a mechanism for referring certain disputes concerning unilateral changes to terms and conditions of employment to the CCMA or an applicable bargaining council, with a request that the previous conditions be restored.
Conclusion
The return-to-office debate is not simply a question of management preference versus employee convenience. It requires consideration of contractual rights, operational requirements and applicable labour legislation.
The key lesson for employers is clear: establish the contractual position and the operational justification before withdrawing an established remote-working arrangement or disciplining an employee for refusing to return.
Sources
- Medici Energy (Pty) Ltd v Bennet NO and Others [2025] ZALCCT 34 – Labour Court judgment concerning an unreasonable return-to-office instruction and the dismissal of the employer’s review application, leaving the arbitration award in the employee’s favour intact.
- Basic Conditions of Employment Act 75 of 1997 – Particularly section 29, which addresses written particulars of employment, including the place of work.
- Labour Relations Act 66 of 1995 – Sections 64(4) and 64(5) address requests to prevent or reverse unilateral changes to terms and conditions of employment during the applicable dispute-resolution period.
- CCMA: Unilateral Changes to Terms and Conditions of Employment – Practical guidance on employment conditions, including the place of work, and the procedure for challenging unilateral changes.
