Negligence vs gross negligence

Our Labour Relations Officers are often confronted with questions on the difference between negligence and gross negligence. Another question is also whether the charge warrants dismissal should the employee be found guilty after they have faced a disciplinary hearing.

Employers normally define the difference between negligence and gross negligence in their Disciplinary Codes with reference to monetary values. Unfortunately not all employees are aware of this as they have not made the time to read their employment documentation.

However, all is not lost and notwithstanding the employer’s understanding and definition of what constitutes negligence or gross negligence, there are guidelines and case law which should be taken into consideration:

Negligence

John Grogan's Workplace Law 11th Edition confirmed that "In labour law, negligence bears the same meaning as it does in other areas of law: the culpable failure to exercise the degree of care expected of a reasonable person." The standard of measurement is that of a reasonable person. Grogan continue to define the reasonable person with an employee "with experience, skill and qualifications comparable to the accused employee".

Moema, employed as a barman, was dismissed for gross negligence after he could not account for cash shortages over a period of time. Commissioner Ferreira, during the arbitration at the CCMA, highlighted certain important principles established in inter alia the Labour Court and Labour Appeal Court. He held that the real test is whether a reasonable employee in the position of the accused employee would have foreseen the possibility of harm and taken steps to avoid that harm. Wilfulness and/or intent is not a requirement for disciplinary action against employees for negligence.

The second principle is that the employer must establish a causal connection between the employee's act or omission and the potential loss to the employer. In layman's terms this means that even though an employee’s actions did not cause financial loss, but almost resulted therein, the employee was negligent.

It is important to note that the loss or potential loss does not necessarily means that negligence was gross and/or dismissible. The alleged negligence of a helmsman (person who steers a ship) in September 2005 resulted in damage to the ship, MV Banglar Mookh. The quantum of damages, including legal fees, was close on R5-m. In this High Court adjudication, the crux of the matter was that the ship went into harbour presumably too fast and in the storm and confusion the ship collided with the Berth Wall resulting in damage and financial loss. By application of the test it was found that in these circumstances the actions of the helmsman and captain were the actions of reasonable employees. In considering all the circumstances and not merely focusing on the quantum of loss the helmsman and captain could not be found guilty of gross negligence and/or liable for the loss.

Does negligence, by default, result in dismissal?
John Grogan confirmed that negligence normally does not amount to dismissal. This was reiterated in the Moema award by Commissioner Ferreira where he held that dismissal is warranted if the negligence was gross.

Gross Negligence
In a dispute where MISA acted successfully on behalf of a member, Commissioner Sean Goldschmidt, in his analysis of gross negligence, held that "[G]gross negligence implies that the negligence was serious: that the action by the employee was extremely reckless, and that there was a careless disregard for the consequences of his actions."

Recklessness in general involves "a person pursuing a course of action while consciously disregarding the fact that the action gives rise to a substantial and unjustifiable risk.” Going back to Grogan’s definition - “…failure to exercise the degree of care… expected of a person with experience, skill and qualifications comparable to the accused employee".

It is therefore safe to say that negligence may be gross and may result in dismissal when it is found that on a balance of probability, the employee's failure to exercise care was:

  • Persistent; and/or
  • Reckless; and/or
  • A single act and/or omission of an act which had disastrous consequences for the employer; and
  • An act resulting in an irreparable break in the trust relationship.
In the words of Commissioner Ferreira ". . .employees owe a duty of care to their employers and colleagues . . ."

Read the contract before signing it
It is important that you, as an employee, read and understand your contract of employment before signing it.

Be mindful that your job description specifies your duties and responsibilities and you need to familiarise yourself with your employer’s Disciplinary Code.

Having said that, the Code never supersedes principles established in law.

If you need assistance with any aspect which you are unsure of, remember MISA is always only a phone call away.

Article by Tiekie Mocke, Senior Labour Relations Officer, MISA.

 

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