In the context of a workplace, an employee is negligent when they fail to exercise the standard of care that can be reasonably expected, which causes actual or potential loss to the employer.
Various investigative questions need to be answered to determine the existence of negligence. For example, would a reasonable person in the particular workplace circumstances, have foreseen the reasonable possibility that their conduct would cause harm to another person or company property? Was it possible for the employee to prevent the harm? Importantly, these tests are to be applied in the context of the specific workplace in question, together with the type of job performed by the employee.
What’s more, workplace negligence is invariably established with specific reference to existing workplace rules, such as standard operating procedures.
The degree of identified negligence will determine whether it is gross or not.
It was held in NUMSA obo Lumka v CCMA & 2 others (Labour Court Case No. PR10/22) that “The test for negligence remains the same – whether negligence, once established, is gross, is a matter of degree, to be determined considering a number of relevant factors. Those factors are inter alia whether the employee is persistently negligent; the seriousness of the act or omission; whether the act or omission is inexcusable; the employee’s awareness of the performance standard required or the procedure to be complied with; the seriousness of the consequences of the act or omission; damages caused and the skills and experience of the employee or the position held by the employee.”
The Labour Court has, since the SCA case of Edcon Ltd v Pillager NO & others (2009) 30 ILJ 2642, reiterated that no evidence is required to be led by an employer related to an irreparable breakdown in a trust relationship, when gross negligence has been proved, as employers are not expected to retain delinquent employees.
As a rule of thumb, depending on the specific circumstances of each case, ‘ordinary’ negligence would justify a written or final warning, whilst gross negligence would warrant dismissal.