WORKING REMOTELY OR REMOTELY WORKING? POINTS TO PONDER FOR EMPLOYERS Quarter 3 2021

By TANYA MULLIGAN AND NEIL COETZER, Published in Employment Law - Feature

More than a year into the COVID-19 pandemic, some employers are still grappling with the idea of remote working. For many employers, this new normal has afforded them the opportunity to reassess their business models, their working arrangements, and their overhead costs (including whether they should ditch their large and expensive corporate offices in favour of more modest office space).

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For others, the 'new normal' is transient, and once the vaccines have been administered, it will be back to the office grindstone. These employers have battled to allow employees to work from home (or any other venue they choose). They complain that they cannot monitor their employees effectively, that teamwork and team dynamics are compromised, and that employees can start operating in silos with little attachment to the organisation.

Remote working has shown up shortcomings in our employment laws as well, particularly in relation to the definition of a 'workplace' and the legal requirements and obligations which arise from it. The definition of a workplace has become much more fluid, as a trip to your local coffee shop, where millennials sip on cortados while working with their airpods, will confirm.

The regulatory headaches created for employers in these circumstances are real, requiring them to rethink their approaches to creating a safe working environment and disciplining employees for misconduct.

In respect of creating a safe working environment, employers have both a common law and a statutory duty, in terms of the Occupational Health and Safety Act (85 of 1993), as amended ("OHSA"), to provide a safe and healthy working environment for their employees. In this regard, OHSA has defined a workplace as "any premises or place where a person performs work in the course of his employment".

Although employers are not obliged to guarantee the safety of their employees, they must take reasonable steps to both identify and eliminate potential hazards to the health and safety of their employees. The new normal, with employees working from home (or a coffee shop), has, of course, made this obligation increasingly burdensome and difficult to achieve, particularly as employers are, to a large extent, unable to either monitor or regulate what takes place away from the office.

The extent of employers' difficulties in this regard are far reaching and affect not only occupational injuries and diseases that would normally be covered by the provisions of the Compensation of Occupational Injuries and Diseases Act (130 of 1993) (COIDA), but may include potential claims relating to vicarious liability, unfair discrimination, harassment and even domestic violence under other statutes.

Employers are thus required not only to determine what an employee's personal living circumstances are, but must also prescribe and monitor compliance with safety standards that must be observed by the employee at their home. Employers cannot simply assume that because employees are working in their home, they are freed from their obligations under the OHSA.

The OHSA Amendment Bill, which was published on 14 May 2021, makes no mention of the issue of remote working. The definition of 'workplace', in particular, has not received any judicial attention from the drafters, despite the complexities set out above. A golden opportunity has been missed to give further clarity on the circumstances in which an employer will be required to ensure that the OHSA is complied with at an employee's home (or any other place they may choose to work).

Preventing unfair discrimination and harassment at an employee's home is more challenging, particularly as most work-related interactions are conducted via email, video conferencing and texting. With cyber-bullying becoming more prevalent, employers must ensure that employees are aware that harassment or discrimination, in all forms, is prohibited and will not be condoned. It seems that a certain amount of monitoring may be required, but this has its drawbacks and may impact negatively on morale.

Employers' frustrations are aggravated by the difficulties of properly managing and disciplining unsupervised employees. This has proven to be a daunting task and many employers have experienced both a breakdown in communication and decreased levels of productivity as a direct result of employees working from home. There is, for instance, no way for an employer to regulate or prohibit an employee from having a few drinks while working from home, engaging in lewd or inappropriate behaviour during working hours or consuming illicit substances while working.

In order to remedy this situation, employers should carefully consider and amend their respective policies and procedures in order to cater for possible 'remote' misconduct. This could, of course, include stricter reporting structures and more regular check-ins. Employers could consider requiring employees to undergo routine medical examinations. In each instance, employers should evaluate the nature of their business and implement the necessary policies and procedures in order to prevent abuse by homebound employees.

Our view is that trust underpins every employment relationship and micro-managing should be avoided. Trust must, however, be built and maintained. Not all employees are able to work without supervision and many may not want to. The world of work has changed, however, and those employers who refuse to adapt will be left behind. Employers will, therefore, need to carefully and urgently consider how they approach tomorrow's world of work, because it is already here.

Mulligan and Coetzer are Partners with Cowan-Harper-Madikizela Attorneys.