The Remote Employment Relationship in the time of Corona and Beyond

A Changing Workplace

The world may be forever changed with the onset of the coronavirus (COVID-19) pandemic; likewise, it is not unreasonable to suggest that our working lives may never be the same again. More locally, this is especially so taking into consideration the resultant widespread remote working arrangements put into place by employers in response to the nationwide lockdown.

Of late, many of us have had shared realisations such as that meeting really could have been an email, I can no longer use traffic as an excuse for being late or I do not need to wear pants (at my peril) for the next conference call. All jokes aside, it is likely that many of these remote working arrangements are here to stay for reasons quite apart from the nationwide lockdown, and given global trends towards the adoption of alternative and flexible working arrangements.  

Performance management and disciplinary challenges

Typically, performance management and disciplinary processes are often considered to be resource intensive, time consuming and an overall diversion from income generating activities. The move of the workplace to home offices, kitchens and even bedrooms, has served in some instances to exacerbate those challenges already associated with employee performance management or discipline.

Despite the challenges, and of course, the countering rapid advances in technology, communication and accessibility; it remains no less incumbent upon an employer to ensure proper performance management or discipline of employees that work remotely as compared to their office-bound counterparts.

Employers will agree that proper performance management or discipline in remote working circumstances is indispensable to ensuring a productive and engaged workforce. This rings true for curtailing the legal, financial and reputational risks associated with possible employment claims that may arise due to poorly managed remote working relationships. Indeed, courts and other adjudicative bodies have begun to deal more and more with cases concerning the remote employment relationships.  

Case in point

Early last year (2019), a Swedish Labour Court (AD 2019 No. 2) had an opportunity to comment upon the remote employment relationship, in particular, the grounds for dismissal concerning a home-based engineer who did not follow procedures related to office attendances, communication with his immediate manager and submitting reports on time.

In essence, the Swedish Labour Court held that employees that work remotely and in an independent manner enjoy a special degree of trust or employer confidence in them. Moreover, that this is coupled with a special responsibility regarding communication with the employer. Significantly, this case also illustrates the importance of communicating prescribed and detailed instructions to an employee in terms of what is expected.

Towards the end of last year (2019), the Fair Work Commission in Australia ([2019] FWC 6999) found in favour of a remote employee and awarded him a remedy of compensation in the sum of $13,716.25 for his unfair dismissal. On the facts, the employee, a software developer, had worked remotely for some three and a half years. This was before he was terminated due to his “gross poor performance”; in particular the employer contended that he “took too long to perform the tasks assigned to him”.

Bearing a similar message to that of the Swedish Labour Court, the emphasis of this case was on the proper establishment by the employer of clear tasks and objectives coupled with consistent monitoring and engagement of the employee. The employer’s failure to take these matters into hand, ultimately led to its downfall in the litigation.

Closer to home, to the best of our knowledge, the intricacies of the remote employment relationship have not as yet been the subject of consideration by our South African Labour Courts. Nonetheless, there is a well-established body of law and ample authority around the concepts of misconduct and poor work performance. What remains is the pragmatic and diligent application of those employment laws to the new non-traditional workplace. Lying at the heart of this endeavour is the obligation on employers to set clear rules and standards so that employees know what is expected of them.

Remote working policies to aid in performance management and discipline

The development and implementation of a well thought out remote working policy will greatly aid both performance management and encourage discipline. We set out a non-exhaustive list of those aspects worth considering for inclusion in a remote working policy:

• The nature of the remote work and duties (including temporary or permanent arrangements). Identifying those employees that must adhere to the policy and ensure non-discriminatory practices;

• working hours (and work outside of normal working hours), availability of employees, communication and reporting. Be specific i.e. set out daily or weekly reporting requirements;

• duties, deliverables, time frames and productivity measurements;

• tools of the trade, collaborative tools, technology and accessibility. What will employees need to do their jobs and how will remote meetings take place? Will employees be issued devices or can they work on their own devices? Expenses that will be covered, if any, and insurance;

• place of work, access to company networks and systems, physical security of company devices. Employees may be prohibited from performing work outside of their homes i.e. coffee shops and malls because of security concerns;

• data protection, employee personal information and confidentiality;

• training, support and crisis management;

• health and safety measures, employees may be required to sign indemnities that their home work spaces are safe / hazard free;

• company culture and employee wellness; and

• disciplinary matters.

We trust that you found this article informative, please email info@hjw.co.za for assistance with performance or disciplinary matters and/or drafting or reviewing of remote working policies.

Rowan Bauer is an attorney specialising in employment law at HJW Attorneys, a boutique law firm based in Fourways, Johannesburg.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.