Employees have an obligation to meet reasonable performance targets and objectives.  In so far as an employees work performance is of such a nature that the actual performance is less than that which the employer can prove it can reasonably have expected from the employee, the employee will be deemed to have acted negligently.

This principle is related to an employee’s obligation to act with care, and not to perform as well as they are capable of performing.  As noted in a recent arbitration award, the requirements for dismissal for a single act of negligence are (1) that the employee failed to exercise the standard of care and skill that can be reasonably expected of him or her, (2) that the lack of care and skill manifested itself in an act or omission that could have caused loss to the employer, (3) that the loss or potential loss to the employee resulted or could have resulted from the employees negligent act or omission, and (4) the negligence must be gross.

Gross negligence is a form of serious misconduct which can justify the sanction of dismissal, even on a first transgression.

Repeated acts of negligence which are not gross (ie: serious enough to warrant dismissal in its own right), could also warrant dismissal, if the employee has failed to respond positively to progressive disciplinary sanctions

When negligence is alleged by an employer, the so called reasonable person test is applied.  In essence, this rule relates to an employer being reasonably entitled to expect a certain minimum level of performance from an employee, and once it has been established that the employee is capable of performing at this level, any subsequent performance which is inferior to this proven level of performance is deemed to amount to negligence on the part of the employee.  Put differently, in cases of this nature, the employer seeks to prove that the employee was capable of avoiding the inferior work performance, level of production, and or quality of performance.

In Transnet Freight Rail v Transnet Bargaining Council and others (2001 6 BLLR LC), it was stated that negligence can be defined as a failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person.  This was reiterated in the arbitration case of Petrus Frederik Rautenbach v Cashbuild (Pty) Ltd [FSBF2638-17], when it was restated that “negligence is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person. Negligence can manifest in either acts or omissions”.

In the arbitration award of NUMSA obo Motsedisi Julia Tsilo v Ngwako Holdings (Pty) Ltd DRC/MINT 50247], it was emphasised that “The test for negligence was described by Driscoll C in the matter of Nkosi / Nampak (2010) 10 MEIBC at 8.14.1, as follows:  The test for negligence is whether a reasonable person in the position of the employee would have foreseen the harm resulting from the act or omission, and would have taken steps to guard against that harm.  The basis for the employee’s culpability is not the act or omission itself, but rather the lack of care or diligence that accompanied the act or omission.  To warrant dismissal, the negligence must be gross, that is, if the employee was persistently negligent or if the act or omission was particularly serious. Where the consequences of a single act or omission are particularly serious, or when an employee holds a position in which negligence on a single occasion may have disastrous consequences, dismissal may be justifiable on the first occasion”.

The Supreme Court of Appeal had the following to say about gross negligence in the case of Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas & Another [2003 (2) Sa473 SCA], “it follows, I think, that to qualify as gross negligence the conduct in question ……. must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care”.

In the final analysis, negligence can be viewed as ‘blameworthy poor work performance’, as there is proof, on a balance of probabilities, that the employee has tender q quantity and/or quality of performance which is less than the employer can prove the employee is capable of.

If, on the other hand, it cannot be proven that the employee’s poor performance cannot be proved to be due to the employee performing below a level of performance they are capable of, the poor work performance may be related to incapacity, rather than misconduct.