Dismissal for negligence in South Africa must be approached within the framework of corrective and progressive discipline, a principle endorsed by South African labour courts. While efforts should generally be made to correct employee behaviour through escalating disciplinary measures, dismissal may still be appropriate where the nature and severity of the negligence justify stronger sanctions
For many forms of misconduct, it is relatively straightforward to apply discipline consistently and in line with disciplinary codes. For example, a verbal warning may be appropriate across the board for a first offence, such as taking an extended lunch break. Arriving at work under the influence of intoxicating substances might warrant a final written warning on a first offence, depending on the industry. On the other hand, serious misconduct such as misappropriation of company funds is widely accepted as justifying dismissal on the first offence.
When it comes to negligence, however, the analysis is far less uniform. One cannot apply a one-size-fits-all approach. Whether dismissal is appropriate depends on a variety of factors, including, but not limited to, the distinction between ordinary and gross negligence, the consequences of the act or omission, the employee’s role and industry, and any actual financial or operational loss suffered by the employer.
Distinguishing Between Negligence and Gross Negligence
At its core, negligence refers to a failure by the employee to meet the standard of care expected of a reasonable person in the same position. Gross negligence, on the other hand, is more serious and involves a marked departure from that standard.
In NUMSA obo Selepe v ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop, the Commissioner distinguished between ordinary and gross negligence as follows:
“The carelessness or mere failure which constitutes ordinary negligence changes into gross negligence due 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.”
This definition underscores that gross negligence is more than just a lapse in judgment – it involves recklessness or serious disregard for consequences.
Legal Framework
Paragraph 3(5) of Schedule 8 of the Code of Good Practice: Dismissal provides:
“When deciding whether to dismiss an employee, an employer should consider not only the seriousness of the misconduct but also the employee’s personal circumstances, the nature of the job, and the circumstances surrounding the misconduct.”
This means that even in cases of gross negligence, dismissal may not always be appropriate unless these contextual factors point toward irreparable damage to the employment relationship.
Sector, Role, and Consequences Matter
The employee’s working environment, industry, and level of responsibility will influence the gravity of the negligent act or omission. For example, a receptionist’s act of gross negligence might not carry the same weight as similar conduct by a medical professional or an engineer. The potential for harm and the magnitude of risk increases with responsibility, which is key when assessing sanction.
A further consideration is the financial loss resulting from the negligence. While minor damage (e.g., breaking a single drill bit) might not warrant dismissal, a pattern or instance of negligence causing significant loss may justify it. Consider the case of Andvik Mining and Construction v Nkuna JR2548-19 [2024], where the Labour Court upheld the dismissal of an employee whose failure to take accurate stock records resulted in a loss of 220 drill bits valued at R260,000.
It is critical that such losses are provable and quantifiable. Employers must present actual evidence of financial harm in legal proceedings. Unsupported claims of loss or relying on potential loss without documentation can weaken the employer’s case at arbitration. For example, if an employee causes damage to a company vehicle, the employer cannot claim loss of hundreds of thousands of rands when, in fact, the only financial consequence was the excess on the insurance policy.
The Trust Relationship
Perhaps the most significant consideration in determining whether dismissal is appropriate is whether the trust relationship has irretrievably broken down. As in all cases of dismissal for misconduct, it is insufficient for an employer to merely allege that trust has been lost; there must be objective grounds and evidence to support this. This can be particularly challenging in negligence cases, where the conduct was not intentional. However, where the negligence shows recklessness or indifference, especially when paired with substantial consequences, dismissal may be justified on the basis that the employee can no longer be trusted to exercise the care required in their role.
Conclusion
Dismissal for negligence is not automatically justified on a first offence; however, there are specific circumstances where it may be appropriate—particularly in cases involving gross negligence, significant financial loss, or a breakdown in the trust relationship. Employers should evaluate each situation on its own merits, taking into account the seriousness of the conduct, the employee’s position, and the resulting impact. Adopting a measured, evidence-based approach ensures compliance with legal standards and strengthens the employer’s case if challenged in arbitration or court.
