During the restrictions occasioned by the Covid-19 pandemic requiring employees to work from home (if they can), both employer and employees have seen the benefits of allowing them to do so. Many employers are now considering amending their contracts of employment to allow employees, whose job requirements permit it, to work from home indefinitely.
The biggest challenges which arise in this arrangement are developing new policies for the management of day-to-day discipline and performance and conducting disciplinary enquiries online to ensure a fair outcome for both employer and employee.
Both the CCMA and the Labour Court have introduced virtual platforms and rules for conducting arbitrations and adjudication respectively online. During a SA Society of Labour Lawyers (SASLAW) seminar late last year, Labour Court Judges van Niekerk and Gush both advocated for this to become a permanent feature for adjudication in the Labour Court indicating that there is no reason in law why disciplinary enquiries should not be conducted online as well. The restrictions due to the pandemic permit a relaxation of compliance with the provisions of Item 4 (4) of Schedule 8 of the Labour Relations Act 66 of 1995 (Code of Good Practice: Dismissal) as they would be regarded as “exceptional circumstances” without a doubt.
The challenge going forward for employers who want to conduct enquiries online post any restrictions on employees coming to work will be to ensure that the chairperson, the accused employee, their representative and witnesses have the necessary technology available to engage in the process, that documents and other forms of evidence are exchanged and dealt with effectively and that the examination and cross-examination of witnesses can be conducted in a manner which ensures that they are not being coached or interfered with during the enquiry.
Join a Conflict Dynamics training course to learn the basic elements which should be contained in a policy for the day-to-day disciplining of employees who work from home and how to chair, prepare for and present a case at an online disciplinary enquiry which will result in a fair outcome. For more about the course click HERE and to book on the next course, being held online on the 5th February 2021, click HERE