It is essential to distinguish between negligence and gross negligence. The reason being that negligence will not warrant dismissal for a first offence, whereas gross negligence could warrant dismissal for a first offence.
Negligence is seen as the failure to fulfil the standard of care that ought to be exercised by a reasonable person in a particular situation. In labour law, the reasonable person test is used to establish negligence. The test entails determining whether a reasonable person/employee, when placed in a similar situation as the accused person/employee, would have acted in the same manner as the accused. According to Prof. PAK Le Roux, the following two elements must be taken into account when dealing with negligence:
- Whether a reasonable person, in the same situation as the employee, could have reasonably foreseen that his/her conduct could cause harm or damage to another person or that person’s property?
- Whether a reasonable person would have reasonably taken preventive action to avoid such harm or damages caused?
If the answer to the above questions is “yes”, then the employee will most likely be guilty of being negligent.
An example of negligence is when a retail store manager forgets to do a floor walk to ensure that all the fruit in the fruit and vegetable section is still fresh. As a result of the floor walk not being conducted, customers saw rotten fruit lying on the shelf. The manager, in this case, would have been negligent in the performance of his/her duties.
Gross negligence is more severe than negligence and could warrant dismissal for a first offence. Gross negligence is said to have occurred when an employee is persistently negligent or if the omission or act in itself is regarded to be very serious, especially when an employer can prove actual damage and/or quantify the financial loss incurred.
In the case between The National Union of Metal Workers of South Africa obo Selepe v. ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop [2013] 5 BALR 481 (MIBC), gross negligence is defined as conscious and voluntary disregard of the need to use reasonable care, which has or is likely to causeforeseeable grave injury or harm to persons, property or both. The case further states that gross negligence is conduct that is extreme when compared to negligence.
An excellent example of gross negligence is the case of Afrox Healthcare Ltd v CCMA & others [2012] 7 BLLR 649 LAC. In this case, a patient was admitted to the ICU after surgery. The doctor’s thought the patient would recover but unfortunately passed away the following day. What transpired was that the patient developed complications through the night. These complications were, however, never mentioned to the day staff. The senior nurse in charge of the night staff and an assistant was charged with Gross negligence and dismissed. The senior nurse chose one of the least experienced nurses in the unit to supervise the patient and was aware that his subordinate made a mistake on the patient’s chart. The senior nurse subsequently failed dismally in his duty of due diligence and care expected from a person in his position. He had not drawn the doctor on duty’s attention to the errors committed by the junior nurse. The court further stated that it is clear the senior nurse failed to supervise his subordinate properly and failed to act responsibly once he became aware that the patient’s condition is becoming worse. Making matters worse, the senior nurse handed over to the day staff without mentioning that the patient is experiencing difficulties. In this case, the court held that a dismissal is fair when considering the nature of the employee’s work and the employee’s experience.
This case serves as an excellent example of gross negligence because it shows an apparent and conscious disregard of a need to use reasonable care. A reasonable person could see that such disregard could lead to grave injury or harm to the patient and the employer.
Negligence often arises due to the mere carelessness to act under the required standard of care. When such carelessness becomes blatant disregard of the standard of care, knowing that such disregard can cause grave injury or harm, or the act of carelessness has resulted in severe loss or damage, then you are dealing with a case of gross negligence.
Contact your nearest SEESA office for labour assistance, alternatively, leave your contact details on our website for a legal advisor to contact you.
About the Author:
Adriaan Brits is currently a Labour legal advisor at our Pretoria office.
He completed a Higher Certificate in Business Principles and Practiced at Varsity College in 2016. He then completed his BCOM Law in 2019 at Varsity College.
References:
Case law:
Afrox Healthcare Ltd v CCMA & others [2012] 7 BLLR 649 LAC
The National Union of Metal Workers of South Africa obo Selepe v. ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop [2013] 5 BALR 481 (MIBC
Articles:
Goldberg & de Villiers Inc., 2019. DON’T BE NEGLIGENT WITH NEGLIGENCE. NEGLIGENCE vs GROSS NEGLIGENCE. [Online]
Available at: https://www.goldbergdevilliers.co.za/latest-news/dont-be-negligent-with-negligence-negligence-vs-gross-negligence/
Lazarus, W., 2020. The difference between negligence, gross negligence and poor work performance in the workplace. [Online]
Available at: https://ceosa.org.za/the-difference-between-negligence-gross-negligence-and-poor-work-performance-in-the-workplace/
Scheepers, J., 2019 . ‘Negligence’ – A Ground for Disciplinary Action. [Online]
Available at: https://www.labourguide.co.za/most…/2031-negligence-a-ground-for-disciplinary-action
SEESA , 2019. Labour law in the workplace. Pretoria: s.n.