Negligence as a form of misconduct is probably one that has been giving employers more headaches than any other form of misconduct. This is mainly because the circumstances under which an employer can dismiss an employee for a first offence of negligence, have been limited by the Labour Court and the CCMA to a great extent.
What is negligence?
In Labour law, negligence bears the same meaning as it does in other areas of law. It is defined as the culpable failure to exercise the degree of care expected of a reasonable person. In the workplace context, the ‘reasonable person’ would be the reasonable employee with experience, skill and qualifications comparable to the accused employee.
Negligence may manifest itself in acts or omissions. The degree, or grossness, of negligence will be determined by the specific way in which it was committed. The harm/potential harm which could have been caused as a result thereof, is not necessarily an indication of the degree of negligence. The test is whether a reasonable employee in the position of the accused employee could have foreseen the possibility of harm and taken steps to avoid that harm. Employees may be guilty of negligence even if no harm results from their acts or omissions.
Dismissal following negligence
The CCMA and Labour Courts established distinguishable forms of negligence that may or may not justify dismissal.
A single act of pure negligence or a first offence of gross negligence seldom warrants dismissal. In most cases it may justify a final written warning. A second conviction of negligence may warrant dismissal.
Dismissal for gross negligence may be considered and imposed for a first offence only if the following elements are present:
The loss/damage should have occurred during the course of employment and should have been due to the fault of the employee.
The employee should have reasonably foreseen the loss/damage.
There was actual loss/damage (not potential).
The employee’s conduct constitutes a kind of reckless dereliction of duty. This simply means that despite the fact that the employee foresaw that his/her act or omission could cause harm, he/she did not take action to avoid the risk or where the employee repeatedly derelicted his/her duty.
A case study
In Robor (Pty) Ltd v MEIBC and others, the issue of when you can dismiss for a first offence of negligence was again brought to the forefront.
The employee was found guilty of negligence, which resulted in the employer suffering a financial loss of R42 000,00. The arbitrator was not persuaded that dismissal was an appropriate sanction and reinstated the employee without back pay.
The financial loss incurred by the employer was the result of the employee having failed in his daily duties, over a period of 4 months, to notice the fact that his subordinates were being paid for work they had already been remunerated for.
The arbitrator rejected the argument that the employee’s misconduct was gross in nature and held that the sanction of dismissal was too harsh.
The arbitrator’s reason was primarily premised on his understanding that gross negligence meant that the employee is accused of a “complete neglect to do things correctly”. The employee received a high performance rating, and the machinery he was responsible for was running at an efficiency rate of 94,7% and 95%. The arbitrator held that the employee’s actions could not be categorized as ‘gross’, as his misconduct was merely confined to his failure to analyse the employer’s cost allocations.
The arbitrator justified his award as follows:
Despite causing his employer a loss of about R42 000,00, the employee’s 30 years length of service mitigated against the sanction of dismissal.
The offences were not as serious as argued by the employer and the trust relationship had not irretrievably broken down.
Dismissal was too harsh a sanction in light of the fact that this was the first time the employee had been found guilty of negligence.
The employer took the matter on review and argued that the arbitrator failed to take into account the evidence it led as to why it was of the view the trust relationship had broken down.
The employer also argued that the arbitrator’s definition of ‘gross negligence’ was incorrect and that he applied the wrong test. The correct test, according to the employer, was to assess the consequences of an employee’s conduct when determining whether their negligence was gross or not.
The judge agreed that the arbitrator simply downplayed the seriousness of the charges without any proper justification. The employee failed to take responsibility and he failed to refute the employer’s argument that the trust relationship had broken down.
The court further held that there is no basis on which the arbitrator could say a loss of R42 000,00 was not significant. The implicit reasoning of the arbitrator to the effect that this amount was not significant when compared to 30 years of service, is simply illogical.
The court held that once it was established that an employee was negligent, the next question should be how serious that negligence was. In this case, the negligence relating to the avoidable costs was a result of a course of conduct over a few months and the loss was significant. It is difficult to see how anyone could not construe such negligence as gross. The award was set aside.