Gross negligence in the workplace: A term commonly used but not always understood

Employment law issues are not for the faint-hearted. The process can seem rigorous, daunting, and deeply personal for employees facing disciplinary proceedings, especially when accused of gross misconduct.

In a recent case, I was reminded of the duty an employer owes to employees in the workplace and the degree of care required when dealing with serious allegations, particularly charges of gross negligence. This led me to examine whether employers truly understand the standard of care required when charging an employee with gross negligence

Understanding Gross Negligence in the Workplace

In National Union of Metal Workers of South Africa v Commission for Conciliation, Mediation and Arbitration and Others[1], the court stated that negligence is the failure to meet the standard of care that a reasonable person would uphold in similar circumstances. In the workplace, an employee’s actions are assessed against the level of skill and diligence expected from a competent worker in the same role. This comparison is made with an employee of similar experience and expertise.

Labour law does not judge negligence in isolation or against a general ‘reasonable person’ standard but rather within the specific workplace or industry. The evaluation considers the employer’s established performance expectations, workplace rules, and procedures.

The case further clarifies that the test for negligence remains unchanged, with gross negligence being a matter of degree, determined by various factors, including:

1. Whether the employee has been persistently negligent;
2. The seriousness of the act or omission; and
3. Whether the conduct is inexcusable.

Additionally, an assessment includes the employee’s awareness of the required performance standard or procedure, the severity of the consequences, the extent of damages caused, and the employee’s skills, experience, or position. These factors collectively help determine whether negligence is severe enough to be deemed gross negligence in labour law.

Distinguishing Gross Negligence from Ordinary Negligence

In National Union of Metal Workers of South Africa obo Selepe v. ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop[2] the court distinguished gross negligence from ordinary negligence. The court stated:

“Gross negligence goes beyond ordinary negligence, involving indifference and a blatant violation of workplace duties. It is characterized by a conscious and voluntary disregard for reasonable care, creating a high likelihood of serious harm to people or property. Unlike ordinary negligence, gross negligence considers the magnitude of risk and the potential for severe consequences if proper care is not taken. It differs from wilful misconduct, which involves intentional actions aimed at causing harm.”[3]

The case of Transnet Ltd t/a Portnet v Owners of The MV Stella Tingas and Another[4] further examines the application of gross negligence. The court stated that gross negligence involves a departure from the standard of the reasonable person to such an extent that it can be categorised as extreme. The test requires demonstrating either:

• A conscious risk-taking with a complete obtuseness of mind; or
• A total failure to take care where there is no conscious risk-taking.

In Transnet Ltd t/a Portnet v Owners of The MV Stella Tingas’ and Another, the court found that while the applicant may have been negligent, her actions did not meet the high threshold of gross negligence. The applicant took some steps to comply with instructions, which negated the finding of “total failure to take care. These mitigating factors indicated that her conduct was not “extreme” or “particular inexcusable”.

Companies, particularly small and medium-sized enterprises (SMEs), should ensure that their disciplinary processes, policies, and workplace regulations align with employment law and case law developments. Misconduct definitions and disciplinary measures should be clearly outlined, and gross negligence should be assessed with careful consideration of legal principles. Employers must take cognizance of these legal standards to avoid engaging in unnecessary disciplinary action, which could result in unfair dismissals and legal repercussions. By implementing clear, fair, and legally sound policies, employers can foster a workplace culture of accountability and compliance while protecting both the business and employees from unwarranted dispute

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.