Negligence can be described as “the culpable failure to exercise the degree of care expected of a reasonable person with the skill, qualifications and experience comparable to that of the accused employee”. This usually takes the form of omission but can also flow from some form of action taken by the employee. Employers are often faced with instances of negligence where an employee “forgot” to do something which has no real effect on the business. Managers will often not discipline for this type of negligence or perhaps issue an internal Written Warning. Indeed it would, in most cases, be advisable to take a corrective approach so as to ensure that the employee learns from their mistakes. Naturally, the more severe the negligence and effect, the more severe the discipline will be, however, it is rarely justifiable to dismiss an employee for a single act of negligence.
There are however exceptions – cases where the employee’s conduct is so Grossly Negligent or where the effect is so substantial that it warrants summary dismissal. This would possibly also include senior managerial staff where their work is so important that a single lapse could have disastrous consequences for the employer. The highly respected author Adv. John Grogan goes further to state that the test in circumstances where an employer could consider dismissal for a first offence would be limited to cases “where the negligence is so gross that it amounts to recklessness”. This is indeed the approach adopted in the past and this element of “recklessness” used to be the requirement in order for a dismissal to be appropriate as a sanction for first offences.
The Labour Court has however recently addressed the issue of “first offence dismissal for negligence” in Robor (Pty) Ltd v MEIBC. The employee was dismissed after negligently failing to notice certain payments were being processed twice which resulted in a loss of R42 000.00 to the employer. The matter was referred for arbitration. The Arbitrator, taking the fact that the employee had 30 years’ service with the company, made a ruling that the dismissal was not an appropriate sanction and ordered reinstatement without back pay.
The employee was charged with failing in his daily duties over the course of 4 months in that he failed to notice the fact that his subordinates were being paid for work they had already been paid for. The arbitrator held that his conduct was not so gross and that dismissal was too harsh. The arbitrator based his finding on his understanding that gross negligence meant “complete neglect to do things correctly” – effectively recklessness. He did not find that the employee’s negligence was that Gross nor did he consider the sanction appropriate taking the employees 30-year length of service into account.
The matter was however taken on review to the Labour Court where it was argued that the arbitrator’s definition of Gross Negligence was wrong and that he had applied the incorrect test. The employer argued that the correct test is to look at the effect of the negligence when determining the grossness of the negligence.
The judge held that the arbitrator downplayed the seriousness of the negligence without justification. He also could not refute the argument that the trust relationship had been broken irretrievably. The court held that there is no basis for an arbitrator to find that R42 000.00 was not significant. The court held that once it is established that the employee was negligent, the next question should be how serious that negligence was – in this case, it related to avoidable costs which was the result of the employees failure over 4 months and that the loss was indeed significant – even when viewed against his 30-year service. The award was set aside.
It is therefore clear that all that is required is for negligence to be gross and for there to be a substantial effect flowing from such negligence in order for the dismissal to become a possible result. As stated above Negligence is usually dealt with by way of progressive discipline and that this is indeed appropriate. However, in isolated cases where the conduct amounts to Gross Negligence with a significant effect on the employer, dismissal can be considered after having followed the correct procedure. It is advisable to seek legal assistance before embarking on such action, however.
ABOUT THE AUTHOR
Charl Vollgraaff obtained his LLB degree from the Nelson Mandela Metropolitan University in Port Elizabeth. After graduating, he commenced practical training through Legal Education & Development at NMMU. During this time he received a Lexis Nexis Award for Best Performance Nationally. After completing his articles at Greyvensteins Attorneys in Port Elizabeth he was admitted as an Attorney in 2010. He practised as a Civil Litigation and Commercial Attorney for 6 years post-admission before joining SEESA Labour in March 2016. He is also in the process of completing a Master’s Degree (LLM) in Labour Law.