A prominent law firm has noted that rising fuel and energy costs are putting flexible work arrangements back on the agenda for South African employers.
Amid huge surges in fuel prices in South Africa, some companies are reconsidering remote and hybrid work as pressure mounts on businesses and their employees.
However, employment law experts have warned that a return to widespread work-from-home arrangements is not as simple as it sounds.
They’ve stressed that the shift is a legal issue that raises questions around working hours, fairness, and whether employers can change work arrangements unilaterally.
Speaking in an interview with HOT1027FM, associate employment law expert at Cliffe Dekker Hofmeyr (CDH), Rashaad Dadoo, said there is no inherent right under the law for employees to work from home.
However, an employee’s place of work is regarded as a term and condition of employment, which means employers cannot simply impose remote work or return to the office without agreement.
“A term and condition of employment cannot be changed unilaterally. That must be changed by way of consultation and agreed upon between the parties,” Dadoo said.
He explained that employment contracts generally specify where work is to be performed, whether at an office, hospital, factory, or another location.
“That becomes a term and condition of employment, and an employer does not have a discretionary power in that regard to unilaterally make that shift or that change,” he said.
While employers may have greater flexibility in workplace practices and operational requirements, Dadoo said changes affecting material employment conditions require consultation.
He noted that employers are entitled to adjust workplace practices to improve efficiency, reduce costs, or restructure operations, but urged companies to “take heed of the important requirement of consultation.”
According to Dadoo, the COVID-19 pandemic showed that extraordinary circumstances can force both employers and employees into negotiations over work arrangements.
“What we’ve seen during COVID is that there are circumstances which sort of force that negotiating hand on both sides,” he said.
“Whether the rise in fuel and the cost associated with that is one of those particular circumstances that will force the hand, I think that’s yet to be seen.”
Changes would require a balancing act
Dadoo said consultation requires employers and employees to engage meaningfully over proposed changes.
“The employer and the employee would sit across the proverbial negotiating table and discuss that change,” he said.
He added that practical considerations also play a major role in determining whether remote work is feasible.
Certain professions, such as hospital doctors, cannot operate remotely, and issues such as supervision, seniority, and productivity must also be considered.
“We also look at aspects like the level of supervision that’s required, a junior staff member compared to a senior staff member, and how you monitor that if there’s a move to work-from-home,” Dadoo said.
He added that employers would also need to assess whether employees are more or less productive in an office environment compared to working remotely.
Dadoo also highlighted the unresolved question of who should bear the cost of working from home, including electricity and internet access.
“It’s usually there’s this sort of knee-jerk reaction to say, well, employees would love to work from home,” he said.
However, he added that one needs to consider whether employees who would prefer to work from home, given the rise in fuel prices, are willing to pay the extra costs of working from home rather than the office.
He said these issues form part of the employer-employee contractual relationship and must be addressed in any agreement.
Dadoo also stressed that employers still retain legal obligations under the Occupational Health and Safety Act to ensure a safe and healthy working environment, even when employees are based at home.
“It becomes quite nuanced or tricky for employers to simply say that everyone can go back and work from home,” he said.
Looking ahead, Dadoo said it is too early to say whether rising fuel costs and geopolitical instability will lead to a permanent legal rethink of the workplace in South Africa.
“What we understand as labour lawyers is that it’s about balancing interests,” he said.
“On the one hand, you have the interests of your employees and their constitutionally protected right to fair labour practices, and then there’s the balance of the rights and interests of an employer.”
He said the courts have yet to determine whether rising fuel costs are severe enough to justify broader shifts toward remote work arrangements.
“What is clear is that it’s a discussion that’s on the table. And if the situation continues as it is, then it’s a discussion that’s only going to become more relevant going forward.”
