• A genuine work-from-home agreement existed;
• The notice to return to work was inadequate; and
• The alleged justification of “a decline in COVID-19 cases” was not acceptable.

Legal principles affirmed

• Lawful and reasonable instructions: Workplace instructions, including an instruction to return to the office, must be lawful and objectively reasonable. Abrupt changes to long-standing arrangements, without consultation or notice, may be unfair.
• Retaliation and punitive intent: Disciplinary action taken soon after an employee exercises a legal right – such as lodging a grievance – may be deemed retaliatory and substantively unfair.
• Procedural fairness: Employees are entitled to be notified of clear charges and to be represented by a representative of their choice, even where that representative may also be a witness.

• Formalise agreements: Document remote-work arrangements in a written agreement to ensure clarity and mutual understanding. (The terms may vary depending on the circumstances.)
• Include a termination clause: Specify that the employer may terminate the arrangement on reasonable notice as specified in the agreement.
• Act reasonably in the absence of a clear agreement: Where no formal agreement exists, employers must ensure that any discontinuation of, or changes to, remote-working arrangements are based on legitimate operational needs. There must be meaningful consultation and employees must be given reasonable notice.
• Respond appropriately if the employee refuses to return: Where an employee refuses to resume office-based work despite prior consultation and reasonable notice, the employer may consider several procedural options. The appropriate course - be it disciplinary action, an incapacity process, or retrenchment - will depend on the specific circumstances. If the correct approach is unclear, seeking legal advice is recommended.