Author: Caelyn Moodley
Negligent conduct by employees can have significant financial implications for an organisation. It can lead to direct financial losses, ranging from financial errors to damage to company property. In such cases, employers might consider taking disciplinary actions against the employee.
It is crucial for an employer to firstly establish whether the act/s of negligence may be deemed gross in nature. The classification of an act as either ‘ordinary’ negligence or gross negligence is vital because it determines the disciplinary outcomes for an employee. Depending on the workplace’s disciplinary code, gross negligence might result in dismissal after a disciplinary hearing, whereas ‘ordinary’ negligence might only lead to a warning.
A real-world example
In a recent CCMA case between the National Union of Metalworkers of SA and Another V CCMA and Other, the outcome of the case resulted in the dismissal of the employee due to gross negligence. The respondent (the employer) had employed Mr Lumka since August 2005 as a licensed forklift operator for ten years. However, for an incident that occurred on the 20th of November 2020, Mr Lumka faced two charges:
- Gross dereliction of duties/failing to follow company Standard Operating Procedure (SOP), in that he failed to conduct a routine check of the forklift, which resulted in the forklift engine failing.
- Gross negligence/damage to company property in that he had failed to check the forklift as per the company checklist.
The respondent had a specific SOP in place requiring Mr Lumka to do a daily pre-operation check of the forklift and complete the checklist. According to Mr Lumka, he did not conduct the pre-operation inspection on the day of the incident and did not complete the checklist daily but instead completed it every Monday in advance for the entire week. As a result, he did not detect the low levels of oil in his forklift, which ultimately resulted in the engine seizing. After a disciplinary hearing, Mr Lumka was found guilty of misconduct and dismissed on the 8th of December 2020.
Mr Lumka then referred the matter to Arbitration. The arbitrator considered that Mr Lumka was a qualified and licensed forklift operator who had been in that position for a period of 10 years, who was aware of the SOP and whose conduct resulted in a huge financial loss for the Respondent. It was further noted that the SOP he had to comply with was necessary and not difficult to do, and as a result his omission constituted gross negligence. Thus, the initial ruling was deemed fair and remained in place.
Negligence
According to the report provided by the court, negligence is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person. In the employment context, the employee’s conduct is compared with the standard of skill and care that would have been expected of a reasonable employee in the same circumstances. The reasonable employee with whom the employee is compared must have experience and skill comparable with that of the employee charged.
The court further provided that in labour law context, negligence is not applied ‘in vacuo’ or against the general standard of a ‘reasonable person’ but is applied in the context of the particular workplace or industry, considering the performance standards and procedures set by the employer. Negligence is usually established with reference to workplace rules or procedures applicable in the workplace.
Gross negligence
For an employee’s conduct to be considered gross negligence, it must digress substantially from the standards of a ‘reasonable person’ to the point of being deemed ‘extreme.’ Gross negligence is identified by an employee’s conscious and deliberate disregard for the need to exercise reasonable care, which has or could cause grievous injury or harm to individuals, property or both. Essentially it is conduct that is markedly more severe than ordinary negligence.
The test for negligence
The test for negligence is crucial because it ensures that individuals and organisations act responsibly to prevent harm. According to the court the test for negligence remains the same – whether negligence, once established, is gross, is a matter of degree, to be determined considering a number of relevant factors. These include:
- Whether the employee is persistently negligent
- The seriousness of the act or omission
- Whether the act or omission is inexcusable
- The employee’s awareness of the performance standard required or the procedure to be complied with
- The seriousness of the consequences of the act or omission
- Damages caused, and the skills and experience of the employee or the position held by the employee
By understanding the distinctions between negligence and gross negligence, employers can ensure that they follow the correct disciplinary processes and maintain a fair and just workplace.
An employer bears the burden of proving both the occurrence of gross negligence and the fairness of any dismissal that may follow, and so, ensuring that disciplinary measures align with both substantive and procedural fairness is vital. Our team of HR specialists are available to assist you with any of your disciplinary matters, providing a seamless and smooth process. Contact us today on [email protected].