What is fault and how does it relate to workplace discipline?
While I often hear the word fault thrown around by employers and employees at many of the hearings I chair, I am often surprised by the lack of a clear understanding that most persons have of the term.
Discipline and eventual dismissal through misconduct are often referred to as fault-based processes and enquiries. This means that before an employee can be said to be guilty of an offence, the employer is required to establish, through admissible evidence, that the employee was at fault.
The law identifies two forms of fault, each unique and distinct from one another. These two forms of fault are known as intent and negligence.
While some types of misconduct can be established by the employer proving either form of fault, certain workplace offences require a specific form of fault.
Should a charge require that intent be proven, the employer would have to prove that that the employee had acted in a manner whereby he/she directed his will to the achievement of a particular result, while having actual knowledge of the wrongfulness of his/her conduct.
Good examples of this form of fault in practice can be demonstrated through some common, however, complex workplace offences:
Gross insubordination requires an employee to refuse a lawful instruction. Additionally, the employee must know the instruction is lawful and that the person giving the instruction is authorised to give such instruction. The employee should know that his/her refusal is wrongful conduct. Finally, the employee’s refusal should be of such a nature that it is calculated to challenge the authority of the superior.
In this offence, the reason or motive for the employee’s refusal of the instruction is important. An example of relevance is where the employee refuses an instruction because they genuinely believed that such instruction falls outside their job discretion and therefore the instruction is one in which they could lawfully refuse. Here the employee is not trying to undermine the authority of the instruction giver but rather to ensure the employer adheres to the contract of employment originally agreed upon by the parties. The employee here does not consider the conduct to be wrongful. Given these circumstances, the required intent element is not present.
Negligence is the other form of fault. The test for negligence has been consistently applied by our courts as follows:
Would a reasonable person(employee) in the position of the employee charged with the alleged misconduct:
- have seen the reasonable possibility that his act or omission would injure another person or cause loss to property; and
- Would the reasonable employee have taken steps to guard against such damage or loss from occurring?
The test for negligence requires us to look at what the employee did in the circumstances, against what the employee should have done. We are required to compare the actual conduct of the employee charged of an offence against the conduct and actions of a theoretically reasonable employee in the same position, had that person been found in the same set of circumstances.
Negligent driving cases often serve as good examples of the application of the above test. It can happen that an employee is involved in an accident that causes a substantial loss. Employers often automatically assume negligence is present the minute damage has been sustained. Employers tend to focus on the amount of damage incurred and neglect leading evidence regarding the employee’s conduct leading up to the damage-causing event.
Take the following example into account:
An employee is driving a truck and hauling a load from Durban to Joburg. The employee, who is now driving at night, gets stuck in a heavy downpour. The employee immediately reduces his speed and moves to the slow lane of the highway. The employee further continues to alternate between his normal and bright headlights in an attempt to improve his visibility. The employee also immediately decides to put his hazard lights on. While driving along, the employee makes out what seems to be another truck that had stopped on the side of the freeway. This truck does not have its parking lights or its hazards on. As soon as the employee picks up this stationary truck, the employee attempts to brake. While attempting to slow down, the employee realises that the brakes will not stop the vehicle in time. The employee looks in his side mirrors and sees the lights of other cars next to and behind him. The employee elects to stay in his lane and not swerve. The employee calculates that to swerve may result in potentially greater damages being incurred and even the potential deaths of these motorists in their much smaller vehicles, should the heavy truck crash into them. The employee slows down as much as possible and prepares himself for impact with the stationary truck. The employee’s truck is seriously damaged as a result.
In the above example, while heavy damage was sustained, the employee’s conduct demonstrates that he had foreseen the possibility of damage occurring and thereafter took steps in an attempt to prevent the damage. While the damage was still incurred, one could possibly argue that the employee reacted in a manner which was reasonable. The employees conduct in the above could be argued to have been comparable to the actions of a reasonable person in such a situation. It may also be argued that despite this damage, the employee was not at fault in this scenario given his conduct. The focus of the enquiry is concerned more with the conduct or actions of the employee rather than the damage that has been incurred.
ABOUT THE AUTHOR
Jonathan Renou has been a Labour Legal Advisor since 2015.