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Having your cellphone on you for most of the day is common practice for just about everyone, but even the most phone-addicted person isn’t always on their phone. Is it fair for your employer to expect you to be available to them at all hours of the day? Where do you draw the line between what is reasonable and what is not, and can you ignore after-hours messages? Scorpion looks at the issue in terms of the law.
The first rule of thumb when it comes to figuring out issues in the workplace is to go back to your employment contract and look at what you signed up for. You may think certain things are unreasonable, but if you signed your agreement to the employer’s terms in your employment contract, you are expected to keep to your agreement.
Many employment contracts have clauses like “overtime work may be required from time to time”. It would be wise to clarify what exactly “time to time” means. This is a vague phrase that could be used by the employer to justify contacting you after-hours and expecting you to respond. Ask the employer to give a more precise definition of “time to time”. On average, how often they would expect you to be available for after-hours work? How much advance notice will they give you for this and will you be paid for the overtime work? Get this in writing, as overtime hours and pay are a common employer-employee dispute.
What is considered 'reasonable' will differ in each person’s specific situation. Let’s take, for example, an employer who WhatsApps instructions on a Sunday night about work for the coming week. It could be seen as reasonable to ignore these, as the employer could just as easily give the instructions on a Monday morning during working hours. However, what if this same employer WhatsApps the team after hours to ask them how to handle an unexpected breakdown of machinery? Deliberately ignoring this message from your employer could be seen as unreasonable.
It is the employer’s responsibility to confirm that the employee did actually receive the message, understands the instruction, and is going to carry it out – just sending a WhatsApp/text/email is not enough.
There are many reasonable reasons why someone may not have read a message, especially after-hours – employees have lives outside of work and cannot be expected to be at their employer’s beck and call all hours of the day. WhatsApp groups can get very busy, and the employee may simply not have seen the message. Not having data or having a flat battery are also reasonable reasons for not answering, among others.
That said, if the instruction was reasonable, and the employer can prove that you deliberately ignored it, a case could be made that you are guilty of insubordination and disciplinary action could be taken against you. It also depends on what you agreed to verbally in terms of being available to your employer, and what your employment contract states, as well as the specific work situation (emergency situations are different from regular after-hours requests).
What’s 'reasonable' can be hard to prove, but Scorpion’s legal experts know how to handle unreasonable employers. Interested in joining Scorpion? Click here.
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Got a legal question for us? Ask it at the next Scorpion Live Q&A (every first Thursday of the month from 11:30-13:30) on the Scorpion Legal Protection Facebook page where you can get free legal advice – you don’t have to be a member.
* This is only basic legal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.
Date added: 21 April 2023
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