A recent judgment delivered by the Labour Court in South Africa has issued another clear caution to employers who are considering bringing remote working arrangements to an end, with the court stressing that written agreements and fair negotiation must guide any change in working conditions. This case adds to a growing body of South African labour rulings that reinforce the importance of clarity when employers allow long term flexibility, especially when relocation or lifestyle changes occur as a result of the arrangement.
Key Takeaways
- Court emphasises the importance of documented remote work terms: Employers cannot rely on informal arrangements when enforcing return to office instructions and must ensure clear contractual agreements.
- Employer conduct directly influenced the constructive dismissal ruling: Actions such as reversing approved sick leave, issuing accusatory communications and reducing salary created an intolerable environment.
- Mental health considerations are increasingly important in labour disputes: The employee’s medically supported anxiety and depression played a significant role in the Labour Court’s assessment of fairness and workplace conditions.
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Relocation Misunderstandings and the Breakdown of Remote Work Agreements
The matter centred on an employee who had been employed by a firm based in Gauteng and who relocated to the Western Cape during the COVID period, after receiving formal approval from the employer to work remotely. During the early stages of the pandemic, many businesses offered flexible arrangements simply to maintain operations, and a number of employees took the opportunity to relocate to provinces with improved service delivery or lifestyle appeal.
The Western Cape in particular saw a marked increase in semigration during this period, becoming one of the preferred provinces for remote workers.
A significant disagreement later emerged because the employee believed that the move was permanent and formed part of a long term arrangement, while the employer had always viewed the relocation as temporary and subject to change as business operations evolved. This type of misunderstanding has become a recurring theme as organisations transition out of pandemic era flexibility. Many employers relied on informal approvals rather than updated contracts, which has contributed to a rise in disputes when remote work expectations differ between the parties.
This misunderstanding eventually escalated in late 2023 when the employer, after experiencing notable financial losses, announced a unilateral decision to cancel every existing work from home arrangement and instructed all staff to resume work at the office within a two month period. The employer reportedly framed the decision as necessary for operational recovery, but labour specialists note that sudden policy reversals are especially vulnerable to legal challenge if employees have formed legitimate expectations based on earlier agreements.
The employee requested a longer transition period and asked to continue working remotely until March 2024, but the employer refused this request and required the employee to return to Gauteng by January 2024 without exception. For individuals who relocate to more affordable or strategically chosen locations, an abrupt return requirement can impose major logistical and financial burdens. Labour specialists advise that transitional periods for major work changes should be negotiated on a case by case basis to avoid perceptions of unfairness or inconsistency.
Deteriorating Workplace Relations and the Constructive Dismissal Finding
According to legal insights provided by ENS, the situation deteriorated further once the employer reinstated the return to office instruction, as the employee felt progressively sidelined from important decisions and excluded from managerial functions, while communication with senior leadership became strained and inconsistent. Workplace exclusion is frequently cited in constructive dismissal cases because it signals that the employer may be acting in bad faith or undermining the employee’s role.
Psychologists warn that workplace exclusion is strongly associated with declining mental health and reduced engagement, which can escalate legal risks for employers.
Mental Health Concerns and the Escalation of the Dispute
Shortly afterwards, the employee submitted a medical certificate stating that they were suffering from anxiety and depression, supported by their treating doctor who confirmed the diagnosis. Mental health related disputes have gained prominence globally since the pandemic, with courts increasingly recognising the impact of workplace stress and pressure when determining whether employment conditions have become intolerable.
The human resources department initially accepted the sick leave submission and indicated that the employee would receive payment for the period in question, but this position was reversed shortly thereafter without a clear process being followed.
HR professionals often caution that inconsistent application of leave policies is one of the quickest ways to create legal exposure for companies, particularly when medical evidence has been provided.
Accusations of Malingering and the Breakdown of Trust
Management then accused the employee of exaggerating their condition and failing to act in good faith. The employee’s salary was reduced during the sick leave period and management warned that disciplinary action might follow if the employee did not comply with instructions. Accusations of malingering are extremely sensitive in employment disputes because they challenge the integrity of the employee and can significantly undermine trust.
Feeling unable to continue working in the environment that had developed, the employee resigned with immediate effect and stated that the workplace had become intolerable. This led to a constructive dismissal case being referred to the CCMA. Constructive dismissal occurs when an employee resigns because conditions have deteriorated to the point that remaining in employment is no longer reasonable. The threshold is high and employees must demonstrate that the employer’s conduct directly created the intolerable environment.
CCMA Ruling Overturned by the Labour Court
The CCMA commissioner originally ruled in favour of the employer, but the Labour Court overturned this outcome on review after examining the full history of events and the conduct of both parties. Review applications allow the Labour Court to assess procedural and substantive fairness, and the court is empowered to set aside CCMA rulings that fail to properly evaluate the evidence.
ENS reported that the Labour Court found the employer’s sudden withdrawal of sick leave acceptance, together with the accusatory tone of its communications and the unauthorised reduction of salary, amounted to a breach of the implied duty of mutual trust and confidence that every employment relationship requires.
South African labour law recognises this implied duty as a core element of fair employment relationships, even though it is not explicitly stated in legislation.
Although the employee had formally resigned, the Labour Court held that the resignation could not be viewed as a voluntary choice but rather as a reasonable reaction to the unbearable working atmosphere created by the employer. The court determined that the employee had no feasible alternative and that the employer’s conduct directly resulted in the termination of the relationship.
Labour Court Findings on Mutual Trust and Confidence
As a result, the court awarded compensation to the employee equal to three months of salary, along with the unpaid portion of remuneration for November 2023, which brought the total amount to more than R310,500. Compensation for constructive dismissal varies depending on the circumstances, but amounts between three and six months are common where the employer’s conduct is found to be substantially unfair.
The Broader Challenge with Remote Work
Although the ruling primarily addressed the employer’s behaviour after the withdrawal of remote working privileges, it became evident during the proceedings that the underlying issues had begun long before this point and were linked to how the remote working arrangement was structured and managed. When arrangements are not documented, both parties may develop conflicting understandings about duration, expectations and the conditions under which remote work may end.
Many South African companies still rely on informal arrangements introduced during the pandemic, creating legal ambiguity when reverting to pre pandemic practices.
The Need for Clear Documentation of Remote Work Agreements
ENS emphasised that employers must document the details of any remote work arrangement in clear and specific terms, particularly when the employee has moved to another province, as the ending of such an arrangement requires careful planning and transparent communication.
Some companies now use remote work addendums to avoid disputes about relocations and return to office expectations.
The Labour Court has consistently demonstrated that it will oppose employers who impose return to office policies without engaging in genuine consultation or negotiation with employees who are directly affected. A failure to consult can result in procedural unfairness, particularly when employees have structured their personal lives around previously agreed conditions.
The court has also shown reluctance to support employers who rely on return to office instructions as a means to exert pressure on employees, punish those who seek further negotiation or use compliance as a basis to carry out adverse employment actions. This aligns with a global shift toward ensuring employee protections in flexible working environments.
Remote Work and the Current Legislative Framework
South African labour legislation, including the Basic Conditions of Employment Act and the Labour Relations Act, currently contains no specific sections that deal with remote work, hybrid work or virtual work arrangements. This absence does not mean remote work is unregulated, but rather that it falls under general contractual and labour principles that govern terms and conditions of employment.
This means that the terms governing remote work are established entirely through individual or collective negotiations and must be written into employment contracts or formal company agreements. Clear contractual language can prevent disputes by specifying notice periods, relocation expectations, performance requirements and conditions that may trigger an end to remote work arrangements.
Where employers have already agreed to conditions that support remote or hybrid work, they may not change these conditions without renegotiating them with employees, as unilateral changes violate established contractual principles. Courts view unilateral alterations as fundamental breaches when they materially affect an employee’s working life.
Remote Work Agreements Are Not Simple Policies
A negotiated work from home agreement cannot be regarded as a simple policy that can be updated whenever convenient, and employers cannot treat such arrangements as mechanisms to retaliate against employees or dismiss them for non compliance. HR experts recommend regular reviews of remote work agreements to maintain clarity and ensure alignment with operational demands.
ENS noted that although employees carry a high burden of proof in constructive dismissal cases and claims of intolerability are historically difficult to establish, employers expose themselves to legal risk when they act in ways that break trust within the employment relationship.
Legal experts often advise that transparent communication is the strongest preventative measure against such disputes.
Examples of such conduct include abrupt changes to workplace rules, sudden reversals of policies that had been communicated previously, unfounded accusations directed at employees, exclusion from work related matters and inconsistent or selective enforcement of internal rules and expectations. These actions can cumulatively create a hostile environment that courts interpret as intolerable.
Conclusion
The ruling reinforces the growing expectation that employers must handle remote work transitions with clarity, consistency and genuine consultation, particularly where relocation, mental health concerns or established working patterns are involved. The Labour Court’s decision highlights that sudden reversals of policy, inconsistent HR actions and behaviour that undermines trust can expose employers to significant legal consequences, including constructive dismissal findings. As flexible work continues to evolve in South Africa, organisations are urged to formalise their arrangements, communicate transparently and manage return to office requirements with sensitivity to avoid similar disputes.
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