Negligence in the workplace

Wednesday, July 21, 2021 #negligence #labourlaw

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.[1] 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.[2]

In employment law ‘gross negligence’ can be taken to mean negligence that is particularly inexcusable.



[1] ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO (2013) 34 ILJ 2347 (LC)
[2] Unilong Freight Distributors (Pty) Ltd v Muller (1998) 19 ILJ 229 (SCA)

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