Gross Negligence in the Workplace
Negligence: When does “ordinary” negligence become “gross” in South African labour law?
The distinction is important because “ordinary” negligence is not usually a dismissible offence – but “gross” negligence is dismissible even for a first offence.
The legal test for negligence is an objective one. How would a reasonable person in the same position have acted – or failed to act? As lawyers like to say, “…it depends on the facts of the case.” And it depends on what you think a “reasonable person” would have done – or not done.
What is Gross Negligence?
The Labour Court of South Africa recently provided some useful guidelines. It said that the conduct must involve a departure from the standard of the reasonable person to such an extent that it may be considered “extreme”. To do so, the conduct should either demonstrate “conscious risk-taking”, a complete “obtuseness of mind” – or, where there is no conscious risk-taking, a “total failure to take care.”
TIP: The distinction between “ordinary” and “gross” negligence at work comes down to a matter of degree – so it needs a judgement call. First, establish what standard would be reasonable. Then consider the facts to assess the gap between the standard versus the employee’s actual conduct. Is the gap “extreme”? Or does it show “no consideration whatever to the consequences of his acts” or “a total disregard of duty”. If the answers are “Yes” – the act or omission constitutes gross negligence.
Department of Co-Operative Governance, Human Settlements and Traditional Affairs, Limpopo Province and Another v Seopela N.O. and Others (JR226/2012  ZALCJHB (4 February 2015); Worklaw Annual Labour Law Update 2015.