Although restrictions due to the Covid-19 pandemic are beginning to ease and more people are now returning to work at their employer’s premises, many employers have realised that there are significant advantages to allowing those who can, to continue working from home. In any event, in terms of current regulations, an employer must still ensure that those who can work from home, do so.

The problem

One of the problems that arises when employees are working remotely is that of how to manage the employee’s conduct and performance when neither their manager nor their colleagues are there to “keep an eye out”. Special additional rules must therefore be developed and clearly communicated to employees working remotely in order to manage discipline and relevant standards must be communicated to manage performance. Because all work-from-home activities are carried out on electronic equipment, the easiest way to monitor performance might be to monitor an employee’s work on this equipment (PC, laptop, cell phone, Ipad etc) via some type of monitoring device or application. But, is this legal and/or practical?

Act 70 of 2002 (RICA) which authorises the employer to “intercept” an employee’s “indirect communication” on an electronic system in certain circumstances

The legality of monitoring an employee’s activities via their electronic equipment

The question that comes to mind immediately is whether it will be lawful for an employer to monitor an employee’s activities via their electronic equipment at home. Many might assume that this is an invasion of the employee’s privacy. The answer to this question lies in section 6 of the Regulation of Interception and Provision of Communication-Related Information Act 70 of 2002 (RICA) which authorises the employer to “intercept” an employee’s “indirect communication” on an electronic system in certain circumstances. An indirect communication is a communication in the hands of a party who is not a party to that communication (i.e. not the sender or the intended receiver or someone in the presence of the sender or intended receiver when that communication is sent). Intercept is defined, amongst other things, but for this purpose as: “… the aural or other acquisition of the contents of any communication through the use of any means, including an interception device, so as to make some or all of the contents of a communication available to a person other than the sender or recipient of that communication, and includes the –

1. monitoring of any such communication by means of a monitoring device;
2. viewing, examining or inspecting the contents of any indirect communication…..”

The circumstances in which an employer may “intercept” information from an employee’s electronic devices are as follows:

• The person intercepting the information may only do so during the carrying on of the business of the employer.
• The information must have been created in the ordinary course of, or takes place during, the carrying on of that business on a system that the employer provides to the employee to be used wholly or partially in connection with the business.
• A “system controller” – a partner in a partnership, a chief executive officer or their equivalent or a person duly authorised by them and various named public servants in the case of public sector employees – has expressly or by implication consented to the interception.
• The purpose of the interception must be to monitor or keep a record of those communications for the purpose of:
  • establishing facts;
  • investigating or detecting the unauthorised use of the system;
  • securing the effective operation of the system.
• The system controller has made a “reasonable effort” to inform the employee that their electronic equipment is going to be intercepted or the employee has given their express or implied consent to such.

If an employer can tick all these boxes then they may install devices or applications into the electronic equipment used by their employees whether on the employer’s premises or at the employee’s home.

The employer must still establish rules and standards appropriate for the management of an employee working remotely

Reaching agreement on rules and standards for remote working

The above takes care of the legal side of monitoring an employee via their electronic equipment, but the employer must still establish rules and standards appropriate for the management of an employee working remotely in order for any discipline or performance management to be fair. It is suggested that the starting point for this would be for the employer and employee to agree to rules and standards for remote working via a written, signed addendum to the contract of employment. The rules and standards would naturally differ for those employees whose work is time-based versus those employees whose work depends on output, i.e. task-based.

Components of the agreement

• Record (in writing) that the employee confirms that:
  • ​they have the basic resources to work from home (desk, chair electricity, stationery, etc);
  • their electronic equipment has been provided by the employer, or has been subsidised by the employer for use during business hours;
  • they have the necessary electronic instruments and resources (router, data, smartphone, bandwidth, etc) to do their job;
  • they agree to their electronic equipment being monitored;
  • they agree that they have read and understood any policies relating to the use of electronic equipment during the course and scope of their employment.
• Record the disbursement the employer will provide for the use of Wi-Fi, cellular data, etc.
• List the devices that the employer has provided to the employee or record what disbursements the employer will be paying for the use of the employee’s own equipment.
• Establish a rule that you must be able to contact the employee at a specified contact number and/or be able to hold a remote meeting during their normal working hours and that failure on their part to ensure there is telephonic/ electronic/digital communication available during that time will be regarded as a serious disciplinary offence.
• Record that it is their responsibility to ensure that their equipment is working during the time they are required to be at work, and that:
  • If there are any problems with their equipment, they must immediately notify their manager who will arrange for a service provider to assist.
  • In the case of load-shedding, the employee must advise their manager timeously so that their work during that period can be diverted elsewhere.
  • Deal with childcare and home circumstances, being as reasonable and flexible as possible.

Agree a set time weekly when you and the employee will be in contact to establish tasks and deadlines for the week ahead.

Additional rules to consider for time-based employees

If an employer can legally monitor work done on an employee’s electronic or digital devices, it would be relatively easy to track whether they are working at the time they should be or not. However, if an employer is unable to comply with the provisions of section 6 of RICA, the employer must implement rules which require some form of “clocking in and out”. For example, an instruction that the employee must call their manager when they start work or get their manager’s permission to leave their workspace for any length of time. A manager might also make “spot check” phone calls during the day.

Managing the work of output or task-based employees

Agree a set time weekly when you and the employee will be in contact (meet remotely) to establish tasks and deadlines for the week ahead. At the weekly meeting, deal with the tasks that were not completed the previous week.

• Ask why the deadline was not met.
• Ask what difficulties were experienced.
• Get agreement on how the difficulties experienced by the employee can be overcome.
• Give the employee any assistance required to enable him/her to overcome these difficulties.
• Advise the employee that, if it happens again, more formal action might have to be taken. Explain what the consequences will be (according to your normal performance management process and disciplinary procedure).
• Follow up with an email recording the agreements reached and the possible consequences if unacceptable conduct persists.

Taking disciplinary measures against remote workers

Whether the employee is working at home or not, the employer’s normal disciplinary code and procedure or performance management procedure will apply. However, there are certain logistical issues that need to be addressed when employees work remotely:

• For remote counselling, evaluation, etc. (for a performance-related meeting) or for meetings where the employee’s immediate superior intends to issue a disciplinary warning, arrangements should be made well in advance so that, if required, the employee’s representative can be advised and can make themselves available to attend via Zoom, Teams or a similar online platform.
• The employee’s immediate superior must send out the invitation to meet to the employee and his/her representative with a requirement that they respond within a certain time limit.
• The meeting should be followed up with an email confirming what took place at the meeting and requiring the employee and their representative to confirm receipt of the email.
• The email should then be filed in the employee’s personal file.

Procedure prior to an online formal disciplinary hearing

All of the usual steps an employer must take prior to convening a disciplinary hearing must still be followed, notwithstanding the fact that the hearing will be run via an online platform. The only practical difference will be that interaction with the employee and potential witnesses will take place online rather than in person.

A full disciplinary investigation will of course need to take place, which involves gathering witnesses’ statements (via online means) as well as collecting documentary and any other relevant evidence. Once the investigation is complete, the employer will then need to decide whether to formally charge the employee.

Agreement for an online formal disciplinary hearing

Although CCMA and bargaining council commissioners and labour court judges have determined that there is no procedural unfairness in holding a disciplinary hearing online (provided the elements of procedural fairness are met), ideally the employer should draft a specific disciplinary procedure for online hearings in consultation (not negotiation) with employee representatives. If the parties fail to reach agreement, then the employer, who has a prerogative to manage discipline in the workplace, may implement the proposed procedure in accordance with appropriate protocols for a fair online hearing.

Until such time as an online disciplinary procedure and/or policy is in place, the employer should attempt to get agreement from the employee and/or his/her representative to conduct the hearing online.

If the parties fail to reach agreement, a preliminary hearing should be convened with an independent chairperson to hear representations from both sides regarding the extent to which the employee will be prejudiced by holding the enquiry online with reference to:

• the extent to which the employee, his/her representative and witnesses can adhere to the physical and technological requirements for an online hearing;
• any other factor which may impact negatively on the employee’s ability to state their case in defence of the charges brought.

Protocol and fair procedure for an online disciplinary hearing

Practically, certain activities or requirements prior to and during an online hearing will need to be carried out differently to the norm. These would include:

• Issuing the notice to the employee to attend the disciplinary hearing.
• Ensuring that all involved in the hearing (employee, representatives, chairperson and witnesses) have the necessary resources and physical requirements to participate effectively and fully in the hearing.
• Ensuring that access to the online meeting is managed and controlled appropriately.

Conflict Dynamics offers an interactive and highly practical workshop covering all the key need-to-know principles relating to protocol and fair procedure for online disciplinary hearings.

Conflict Dynamics is able to assist with providing an independent chairperson for a preliminary hearing regarding the appropriateness of holding a hearing online or to preside over the online disciplinary hearing itself. Find out more.