Definition of Negligence
Negligence is a failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person.
The Test for Negligence
The Labour Court has formulated a test for whether poor work performance constitutes misconduct or incapacity. Two questions must be asked:
1. ‘Did the employee try but could not?’
2. ‘Could the employee do it, but did not?’
If the answer to the first question is ‘yes’, the matter concerns poor performance because employees try to achieve what is expected of them, but are unable to do so and do not behave wilfully or indifferently or fail to apply the necessary care.
If the second question is answered in the affirmative, then the substandard performance constitutes misconduct. In that case, the employee is fully able to do what is required and his or her failure can only arise from indifference or deliberate failure to take care.
Disciplinary Action for Negligence
Disciplinary action may be taken against employees for negligence because they owe a duty of care to their employers and their collegues. The basis of the offence is therefore a breach of that duty. The requirements for dismissal for negligence are:
a. The the employee failed to exercise the standard of care and skill that can reasonably be expected of an employee with his or her degree of skill and experience;
b. That the lack of care and skill manifested itself in an act or omission that did or could have caused loss to the employer;
c. That the loss or potential loss to the employer resulted or could have resulted from the employee’s negligent act or omission;and
d. That the negligence was gross.
The common characteristic of all negligence cases is a failure by the employee to take steps necessary to ensure that work is properly performed. Negligence is usually established with reference to workplace rules or procedures in the workplace. It is normally not enough to prove merely that loss occurred or could have occurred as a result of the employee’s act or omission and the occurrence or potential occurrence of the loss.
To warrant dismissal at first instance, negligence by an employee must be ‘gross’. Gross negligence may be said to have occurred if the employee is persistently negligent, or if the act or omission under consideration is particularly serious in itself.
In employment law ‘gross negligence’ can be taken to mean negligence that is particularly inexcusable.
 ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO (2013) 34 ILJ 2347 (LC)
 Unilong Freight Distributors (Pty) Ltd v Muller (1998) 19 ILJ 229 (SCA)
Often, after conducting an investigation, an employer will issue their employee with a notification to attend a disciplinary hearing and in response the employee will resign!
By doing so the employee hopes to avoid the disciplinary hearing and possible dismissal and rather go back into the job seeking market with a clean record.
If the employee resigns and serves their contractual notice period then the employer can proceed with the disciplinary hearing. During the notice period the employment relationship continues and thus the employer can still pursue disciplinary action. Should the hearing proceed and the employee does not show then the hearing may proceed in the employees absence.
But what an employer do when the employee resigns with immediate effect before disciplinary action commences?
In Mthimkhulu v Standard Bank of South Africa delivered on 18 September 2020 (“Mthimkhulu”) the Labour Court held that where an employee resigns in breach of his or her employment contract, the employer need not approach a court for an order of specific performance to keep the employment contract alive. It is the election by an employer to reject the repudiation of the employment contract that keeps it alive, not an order of specific performance.
The Labour Court has placed emphasis on the election which employers may make where an employee resigns with immediate effect in breach of his or her notice period. In response to the breach of contract by the employee, an employer may either accept the repudiation or it may reject it and hold the employee to his or her notice period, thus precluding the employee from avoiding a sanction being imposed upon him or her. Importantly, the employer need not rush off to court for an order of specific performance.
Registered medical practitioners are empowered by the regulatory framework of their profession to certify whether employees are able or unable to perform their work duties as a result of illness. The purpose of a medical certificate in the employment context is to communicate the reason for the absence of an employee due to illness to an employer in an accessible and easily verifiable manner.
As per the Basic Conditions of Employment Act 75 of 1997 (BCEA) Section 23 (1) the employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
What does this mean? If your employee has only been off sick for one day you cannot ask them to provide a medical certificate, however if they have been off sick for 2+ consecutive days or twice in a 8 week period, then you can request a medical certificate.
What information should be in a medical certificate?
The Ethical Rules of Conduct for Practitioners Registered under the Health Professions Act, 1974 as published in GN 717 (as amended) Rule 16 provides as follows:
16. Certificates and reports
(1) A practitioner shall grant a certificate of illness only if such certificate contains the following information -
(a) the name, address and qualification of such practitioner;
(b) the name of the patient;
(c) the employment number of the patient (if applicable);
(d) the date and time of the examination;
(e) whether the certificate is being issued as a result of personal observations by such practitioner during an examination, or as a result of information which has been received from the patient and which is based on acceptable medical grounds;
(f) a description of the illness, disorder or malady in layman’s terminology with the informed consent of the patient: Provided that if such patient is not prepared to give such consent, the practitioner shall merely specify that, in his or her opinion based on an examination of such patient, such patient is unfit to work;
(g) whether the patient is totally indisposed for duty or whether such patient is able to perform less strenuous duties in the work situation;
(h) the exact period of recommended sick leave;
(i) the date of issue of the certificate of illness; and
(j) the initial and surname in block letters and the registration number of the practitioner who issued the certificate.
(2) A certificate of illness referred to in subrule (1) shall be signed by a practitioner next to his or her initials and surname printed in block letters.
(3) If preprinted stationery is used, a practitioner shall delete words which are not applicable.
(4) A practitioner shall issue a brief factual report to a patient where such patient requires information concerning himself or herself.
The Use of Medical Certificates as Evidence in a Disciplinary Hearings and at the CCMA
The Evidence Amendment Act 45 of 1998 makes it clear that hearsay evidence includes evidence given in writing by a person other than the deponent to an affidavit. This means that a medical certificate, which is submitted by the employee, is evidence given in writing by another person - and therefore constitutes hearsay evidence. Hearsay evidence is not admissible unless it is supported by other direct evidence. In Mgobhozi v Naidoo NO & Others  3 BLLR 242 (LAC) the court noted that the fact that the appellant in that matter had referred to the medical certificates in his sworn affidavit did not make them anything other than hearsay evidence - because he was referring to evidence in writing given by another person. Medical certificates remain hearsay evidence unless the doctor files a supplementary affidavit in support of the medical certificate.
What does this mean in your disciplinary hearings? If you are in a hearing for 'Abuse of Sick Leave' or 'Dishonesty or Fraud charges pertaining to the falsification of documents (fake medical certificates)' the employee cannot simply revert back to the medical certificate as evidence that they were ill and booked off. The person who wrote the document, in this case the Dr. who drafted the medical certificate, would have to either be present or have provided an affidavit to support the medical certificate.
"Every employee has the right not to be unfairly dismissed" S185 of the LRA
The Act does not confer on employees a right not to be dismissed, but only not to be unfairly dismissed.
Permissible reasons for dismissal are set out in S188 of the LRA:
1. A dismissal that is not automatically unfair, is unfair if the employer fails to prove -
a) that the reason for the dismissal is a fair reason -
i) related to the employee's conduct or capacity; or
ii) based on the employers operational requirements; and
b) that the dismissal was effected in accordance with a fair procedure
If the reason for the dismissal cannot be brought under one of those headings, it is arbitrary and unjustifiable.
No dismissal can be for a valid reason unless it is related to the employee's conduct or capacity, or to the employer's operational requirments. 'Conduct' is behaviour for which the employee could have avoided. 'Capacity' refers to the employees ability to perform their work adequately. By 'operational requirements' are meant those based economic, technological, structual or similar needs of the employer.
The Act does not permit an employer to dismiss for any reason related to the employee's conduct or capacity, or to the employer's operational requirments; the reason must be fair. A fair reason means one that is justifiable.
When deciding whether dismissal is for a fair reason a judgement must be made by the person deciding on the question and it is to be made in relation to the facts, the guidelines set by the Labour and Labour Appeal Courts and any relevant code of good practice issued in terms of the Act. (Sidumo & Another v Rustenberg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) )