Performance Dismissal for Remote Staff: 2025 Code Rules

Dismissing a remote or hybrid employee for poor performance is not a different legal test from dismissing anyone else. It is the same test, applied to a working environment the employer did not design and cannot directly observe, and that gap is where most of these cases are won or lost. Two developments make now the moment to get this right: the Code of Good Practice: Dismissal, which came into effect on 4 September 2025, and a run of Labour Court judgments testing exactly how remote work and procedural fairness interact in practice. For IT, engineering, and training-sector employers managing distributed teams, this is not a theoretical risk, it is the live shape of CCMA exposure in 2026.

Incapacity Versus Misconduct Classification: Get This Right First

Poor performance is incapacity, not misconduct. The employee is presumed capable and willing but simply is not meeting the standard despite genuine effort, and the substituted Schedule 8 places poor work performance in the Part headed Incapacity, alongside ill health and injury, structurally separate from misconduct, signalling that the process is meant to be corrective rather than punitive. Remote work makes this classification harder, not easier: an employee who has gone quiet, missed deadlines, and stopped responding could be struggling or could be disengaged, and an employer often cannot tell from a distance until it actually asks. The distinction matters enormously. In Pienaar v Murray & Roberts Projects, a repeated failure by a senior manager to comply with instructions was found to constitute serious misconduct, not incapacity, and running the wrong process against the wrong classification can lose a case regardless of how the underlying facts would otherwise have played out. Incapacity is also judged against past performance, not an entry-level requirement for a newly redesigned role, per FAWU & others v SA Breweries; if a role has just been restructured into hybrid or remote work with materially different expectations, the clock resets.

Reasonably Achievable Performance Standard: What Changed in the 2025 Code

An arbitrator weighs four factors: whether the standard was failed, whether the employee knew or should have known of it, whether they had a fair opportunity to meet it, and whether the standard was reasonably achievable. That last factor is new. The old Schedule 8 test did not include it; the 2025 Code added it as an explicit, standalone requirement, and it is precisely where remote and hybrid cases will be won or lost. CCMA guidance has long required employers to discuss possible causes of poor performance and fix workplace-based obstacles, such as an unreasonable workload or broken equipment, before anything formal begins. Applied to a remote worker, that extends naturally to connectivity, load-shedding contingencies, equal access to systems and support, and whether onboarding actually equipped the employee to work unsupervised. A KPI set that quietly assumes office coaching or hardware the employee was never issued will struggle on reasonably achievable grounds, so the standard should be in writing, acknowledged by the employee, and output-based wherever possible rather than presence-based.

Remote Work Monitoring and POPIA Compliance

Whatever evidence an employer uses to prove underperformance has to have been lawfully collected, or it hands the employee a second cause of action that colours how a commissioner reads the whole file. Monitoring must be proportionate, with clear purpose limitation, minimal processing, and employee notification to satisfy section 11 of POPIA, and a monitoring policy should set out what is tracked, how, and the measures taken to keep that data confidential. Intercepting private communications content, rather than logging activity, separately engages RICA. Practically, output records, deliverables, deadlines, CRM or ticketing data, client feedback, should form the spine of any performance case, with activity monitoring such as screen time or keystrokes used only as corroboration, since leading with it invites a fight about lawfulness that distracts from the merits. A written remote work and monitoring policy, issued and acknowledged before any performance concern arises, is worth more than any log gathered after the fact.

Performance Improvement Plan South Africa: Proving Support Was Real

• A structured, calendared check-in cadence rather than sporadic messages, with documented one-on-ones.
• Equal access to whatever training the office-based team receives, and a named point of contact.
• A direct response to whichever workplace-based obstacle was identified, not a generic template.
• Contemporaneous notes written near the event, not reconstructed for the file after the decision to dismiss has effectively already been taken.

The Code does not require a formal Performance Improvement Plan by name, but a properly constructed PIP remains the most reliable way to evidence the underlying support obligation. Commissioners are alert to plans built to fail, and the recurring reasons employers lose these cases are familiar: no clear standard, support treated as a formality, unrealistic targets, inconsistent treatment of comparable underperformers, an enquiry that looks like a disciplinary hearing, and simple misclassification.

Reasonable Accommodation: A Distinct and Narrower Duty

This is where a great deal of HR documentation goes wrong. Reasonable accommodation is not a general fairness concept; it is a specific, disability-triggered doctrine under section 6 of the Employment Equity Act, and it can arise when a disability-related need is voluntarily disclosed or reasonably self-evident. Many hybrid or remote arrangements began as, or now function as, an accommodation for a disclosed health condition, which is exactly why the two concepts get conflated. In Lewis v CCMA & Van de Venter Mojapelo, ending a remote-work arrangement was itself found reasonable, but the employer’s handling of the employee’s medically certified sick leave, accusing her of malingering and departing from its own procedures, amounted to constructive dismissal. By contrast, in Abels v University of Stellenbosch, the employer’s genuine attempts to accommodate a senior employee, including a properly documented PIP, were enough to uphold the dismissal on review. The practical rule: screen every remote-worker performance file for a disability or health angle before anything goes in writing, and document any accommodation conversation as its own separate thread from the performance record.

Avoiding Return-to-Office Contamination of the File

Employers often end remote work and manage performance at the same time, and the two processes bleed into each other. In Medici Energy v Bennet, an employee instructed back to the office with a single weekend’s notice, immediately after raising a grievance, successfully argued the instruction was unreasonable and that its timing suggested retaliation; the dismissal that followed was found both substantively and procedurally unfair. In Lewis, by contrast, the return-to-office instruction itself was reasonable, it was the handling of what followed that failed. If an employer is simultaneously ending someone’s remote arrangement and managing their performance, the two should run as separately documented processes, with any performance step kept well clear of the timing of a grievance, a sick note, or a refused extension request.

How LBD Consultants Builds a CCMA-Proof Performance File

The CCMA does not penalise employers for having remote or hybrid staff. It penalises employers who cannot show, on paper, that the process was fair for that employee in their actual working conditions, not the office conditions the policy was written for. LBD Consultants’ Labour Law Division, working alongside the HR Division, helps IT, engineering, and training-sector employers classify performance concerns correctly, set reasonably achievable remote standards, build POPIA-compliant monitoring policies, and construct the documented PIP and incapacity enquiry record that survives CCMA scrutiny. Contact LBD Consultants today to review your remote and hybrid performance management process before your next enquiry.