A recent article by Tages-Anzeiger ‘Companies must pay share of rent for employees working from home’ (www.swissinfo.ch, accessed 17-6-2020) has reignited the value of a 2019 decision of the Federal Court in Switzerland (see Ruling of the Swiss Supreme Court of 19-4-2019 at www.bger.ch). In this case, an employee approached the Labour Court of the Zurzach District seeking financial relief after working beyond office hours and utilising his private residence as a home office for the performance of his work duties. The court passed a significant precedent when it ruled that employers should contribute a percentage towards payment of rent. Considering the COVID-19 pandemic, the decision to award compensation of an amount equivalent to US$ 154 to employees, gives new meaning to employee support. It is crucial to determine whether such employee support is a reasonable expectation from employers within the South African context. Therefore, where labour law might be silent, a constitutional obligation may arise.
It can be argued that the outbreak of COVID-19 has wreaked havoc in all aspects of human life, including the world of work and how employees are expected to carry on with their obligations. Since this is a global crisis, the impact has been disproportionate considering that many countries were only just catching up with the fourth industrial revolution. Once more, technology finds itself at the epicentre of a disruption to the world order, becoming a major source of unrest. This is because plans to salvage work deadlines, industry activities and personal commitments have called for a virtual solution, as people attempt to avoid the impact of an economic standstill.
The work environment is designed to accommodate the daily functions and activities to be performed by employees. It includes essential office furniture, and technical devices such as laptops, printers and mobile phones, depending on the nature of individual work. The most fundamental resource at the heart of efficient work performance is Internet connection, and places of employment are already equipped to cater for such need. Undoubtedly, the transition to working from home raised an issue of ‘readiness’ to employees across the spectrum. Employers were faced with the dilemma of issuing laptops to employees who ordinarily relied on desktop devices at work. This was coupled with the additional problem of providing Internet access. Many companies and institutions responded by distributing modems and financial incentives towards subsiding the data usage of employees working from home. Further debates have since surfaced regarding whether employee support is enough to complete monthly work tasks and engage in hour-long online meetings on Microsoft Teams and Zoom. Either way, working from home has shifted some financial burdens, which would ordinarily be shouldered by the employer.
In the South African context, several issues are worth considering. As a point of departure, South Africa (SA) is certainly not in a financially viable position to offer the type of employee support that the highest court in Switzerland, or other countries in the global north, has mandated. In 2019, Switzerland recorded a GDP of US$ 703,165 million, which is far in excess to that of SA at about US$ 350 million. Therefore, it is important to note that the Swiss legal response to employee support is contextual. Indeed, these are uncharted waters, and there is even greater pressure on South African employers to display flexibility and compassion.
The Occupational Health and Safety Act 85 of 1993 is vocal about the employer’s obligation to provide a safe work environment, which is extremely relevant during the COVID-19 pandemic. In terms of SA’s advanced labour regulations, there is no express law that compels employers to reimburse employees for additional expenses incurred as a result of working from home. The reason for suggesting reasonable support during this period is primarily that the spirit of the Constitution states that ‘everyone has the right to fair labour practices’, this constitutional protection extends to both the employer and the employee. Reasonableness in terms of the approach to employer support considers the employers already strained financial position. Furthermore, the constitutional protection guards against exploitation of either party during such uncharted times.
A response to the question of reasonable employee support is important since this might shape and alter the world of work. To navigate these uncharted waters, employers in SA have adopted different methods to employee support. It is extremely important to consider the South African context, suffering high unemployment rates long before the arrival of COVID-19. As a result, the gravity of the situation has been increased. This calls for a balanced approach when considering the further financial strain that would burden South African employers, and the possibility of a detrimental retaliation.
While SA does not have the financial muscle of Switzerland, there is a legal framework to bind employers to give ‘reasonable subsidy’ to their employees, a development, which trade unions might also have to confront soon. The concept of reasonable subsidy refers to financial and non-financial measures that can be adopted by employers, in addition to those already existing within the workplace. This includes allowing employees to take leave, and to continue encouraging the prioritisation of mental wellness and well-being. In addition, reasonable subsidy will have to be a subjective industry-specific consideration ensuring that employers do not pass off work expenses to employees.
In relation to data costs and charges for Internet installation and usage, the approach adopted should consider a shared responsibility between the employer and employee in the calculation of those expenses. As a safeguard, each employee would be required to provide proof of data capacity on devices, which is relied on by the employee, for the fulfilment of their duties, as well as the proof of payment, in order to prevent unjustified enrichment. The employer will then compensate retrospectively.
Accordingly, South Africa’s current economic climate faces great instability as the COVID-19 pandemic continues. As such, it is not financially viable to expect South African employers to disseminate elaborate forms of employee support like contributing towards the payment of rent for utilising the private residence as a home office, and compensation for working overtime. However, there is a constitutional obligation that compels employers to fair labour practices. This entitles employees to be reimbursed for data and Internet connection costs, in addition to other reasonable non-financial support mechanisms.
Nicholene Nxumalo LLM (UKZN) is a lecturer in the Public Law Department at Nelson Mandela University in Port Elizabeth.
This article was first published in De Rebus in 2020 (July) DR 43.
