The importance to distinguish between negligence, gross negligence and poor work performance.
The essence of a working relationship between employer and employee exceeds the mere reciprocal notion to provide services in anticipation of remuneration. Each employee is burdened with a standard of skill and care whilst rendering said services to its employer. To this effect, every employer has recourse in the event that an employee fails to abide by the required skill and care expected, whether the failure can be attributed to negligence, gross negligence or poor work performance.
Despite this recourse, it is of paramount importance for an employer to firstly establish whether the act and/or acts of negligence may be deemed gross in nature, or whether it can merely boil down to poor work performance. The importance of this distinction may determine whether the conduct of the employee will result in progressive discipline, dismissal or further training and counselling. In addition, hereto, the procedure to follow in instances of negligence can entail standard disciplinary inquiries that may lead to sanctions against an employee, whilst instances of poor work performance require a procedure to provide guidance, training and counselling in order to improve the performance rendered by a said employee, as will be set out more fully below.
Establishing acts of negligence.
Albeit that negligence in civil, criminal and labour matters may be applied on different levels, the core of negligence still remain the same. Grogan particularly behests this point by indicating that negligence bears the same meaning as it does in other areas of the law namely the culpable failure to exercise the degree of care expected of a reasonable person. In the workplace context, the ‘reasonable person would be the reasonable employee with experience, skill and qualifications comparable to the accused employee.
Grogan goes further in providing guidance and applying a test of negligence by applying the merits of each matter to the actions required of a reasonable employee in instances of alleged negligence. He indicates that negligence may manifest itself in acts or omissions. The test is whether a reasonable employee in the position of the accused employee would have foreseen the possibility of harm and taken steps to avoid that harm. Employees may be guilty of negligence even if no harm results from their acts or omissions; what matters is if they might have caused harm. Negligence is akin to carelessness; if the employee actually foresaw the harm, the misconduct would be classified as deliberate, not negligent, and would self-evidently be more serious.
The test can therefore be broken up into various aspects:
The reasonable person in the shoes of the accused - To this effect consideration can be given to aspects including the expertise, length of service and job specification of the employee. The circumstances surrounding the misconduct must also be taken into account. Should an employee be employed as a truck driver, for instance, one can reasonably assume that the reasonable truck driver with a certain amount of experience and know-how can be held to a standard of skill and care that meets the job specification of such a driver.
Foreseeing harm or risk - As the core of negligence entails the act or omission of the employee which causes harm or risk or even the possibility of harm or risk, it is prudent to beg the question of whether the reasonable person in the shoes of the Accused could or should have foreseen the possibility of harm or risk. To this effect, and applying the same scenario of a truck driver, it would be reasonable to expect the reasonable truck driver to adjust travelling speeds in instances of wet or unstable road conditions, alternatively to anticipate a safer following distance with heavier loads.
Steps taken to avoid harm or risk – In instances where the reasonable person, in the background of the above, finds himself in a position of possible harm or risk, the steps taken to avoid such harm or risk may be a considering factor to establish whether the conduct can be deemed as mere negligence or gross negligence. Certain deciding factors can also be taken into account with each diverse set of facts. In this regard safety check sheets, road signs or speed limits may be deemed as tools at the disposal of an employee (if applying the scenario of a truck driver) to avoid harm and/or risk. Inline herewith, regular and recorded checks of a vehicle by a driver between each trip may be seen as steps taken to avoid harm or risk. Should the driver then for instance be in an unfortunate collision due to a failing tyre, the steps taken by the said driver between each stop may discharge the standard of skill and care that was required of him.
The factors as indicated above should be considered collectively to ascertain the deviation of the standard of skill and care, in addition to the extent of said deviation to establish the distinction between negligence and gross negligence. This is also dealt with in NUMA obo Selepe v Bergview Engen One-Stop BALR 481 (MIBC).
Should negligence be established, employers may follow disciplinary procedures with due consideration of the provisions as provided for in Labour Relations Act 66 of 1995, Schedule 8, Item 7.
Poor work performance as opposed to negligence
When considering instances of poor work performance employers must examine the current performance of the employee in the background of the performance that is required by said employee. In particular, what the Key Performance Indicators of the job description of such an employee entail and how the employee falls short of such a performance standard. In contrast with negligence, an instance of poor work performance relates more towards the failure by an employee to reach targets, deliverables or objectives that may be rectified by performance management. In cases of negligence, the employee is deemed to have been fully aware, trained and capable to avoid risk, which may cause training or performance management to be ill-suited.
Of paramount importance is to apply the correct procedure in instances of poor work performance. Whilst instances of negligence fall under the ambit of misconduct and would be dealt with in terms of disciplinary proceedings, instances of poor work performance are regulated by Labour Relations Act 66 of 1995, Schedule 8, Item 9. The Act is particularly clear on the procedure to follow in instances of poor work performance as well as the factors that employers must consider to ensure procedural as well as substantial fairness. It particularly requires consideration of:
(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or not:
(i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the required performance standard.
It is however important to note that the act particularly refers to an opportunity provided to an employee to achieve the standard. This constitutes more than a mere preponderance, but a requirement of law. It is therefore not a procedure to sanction an employee, but rather a procedure to rectify the performance standard of the employee. Subsequent to actual guidance, training, and opportunity provided, and subject to the employee failing to achieve the required standard, the services of an employee may be terminated due to poor work performance.
In an assessment of poor work performance, the following can may be considered:
If the employee did not reach the performance standard,
Determine whether the employee was aware or could have been reasonably aware of the standard,
Was the employee given a fair opportunity to meet the standard/ improve on his current standard and
If dismissal would be the appropriate sanction of the employee not meeting the standard.
Why the employee was not reaching the standard – is it a training issue?
Is the standard reasonable and achievable – are other employees reaching the standard?
How long has the employee not reached the standard?
How far is the employee form reaching the standard?
Would more time/ training assist the employee in reaching the standard?
How can the company further assist the employee in possibly reaching the standard?
In a nutshell
Employers may mitigate their risk by applying the test of negligence to establish whether the conduct may be deemed as mere negligence or gross negligence. In addition, hereto consideration must be given to schedule 8 of the Code of Good Practise to establish whether dismissal would be appropriate. This entails disciplinary proceedings in anticipation of a sanction. In instances of poor work performance however, the procedure entails consultation sessions with the anticipation of improving the performance standard of an employee. The importance of this distinction became evident in the matter of Human v Santam Ltd (2005) 26 ILJ 363 where the employer was found to have followed the wrong procedure by failing to distinguish between poor work performance and misconduct.
. Grogan John: Workplace Law 10th Ed 20090, ch 13-p 226. . Grogan John: Workplace Law 10th Ed 20090, ch 13-p 226. . “The carelessness or mere failure which constitutes ordinary negligence, changes in gross negligence to an indifference to, and blatant violation of a workplace duty. Gross negligence can be described as a conscious and voluntary disregard of the need to use reasonable care, which has or is likely to cause foreseeable grave injury or harm to persons, property or both.” . Any person who is determining whether a dismissal for misconduct is unfair should consider: (a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the work-place; and (b) if a rule or standard was contravened, whether or not— (i) the rule was a valid or reasonable rule or standard; (ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; (iii) the rule or standard has been consistently applied by the employer; and (iv) dismissal with an appropriate sanction for the contravention of the rule or standard. Schedule 8 of the Labour Relations Act can particularly considered to establish whether the rule or practise was well known and consistently applied. . Section 188(1)(a)(i) of the Labour Relations Act . The Labour Relations Act in Schedule 8 item 9 as read with items 8 and 4. . In Somyo v Ross Poultry Breeders (Pty) Ltd (1997) 7 BLLR 862 (LAC) it was held that “An employer who is concerned about the poor performance of an employee is normally required to appraise the employee's work performance. The employer is required to warn the employee that if his work performance does not improve, he might be dismissed; and to allow the employee a reasonable opportunity to improve his performance.” . Schedule 8 of Labour Relations Act, Code of Good Practice: Dismissal.
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