In order to maintain fair labour practices in the South African workplace, procedural and substantive fairness are vital considerations.
Procedural fairness highlights the procedure followed by an employer when disciplining an employee for misconduct or negligence. Procedural fairness ensures that an impartial, fair, and thorough disciplinary inquiry is conducted, that the employee is informed of the charges against them, and that the employee is provided with the opportunity to respond to these charges.
Substantive fairness, on the other hand, requires a fair and valid reason for an employer to discipline or dismiss an employee for misconduct or negligence.
Schedule 8 of the Code of Good Practice offers key guidelines for determining whether dismissals for misconduct are fair. It emphasises that the following elements must be taken into account when assessing such cases: “whether the employee violated a workplace standard or rule; whether the standard or rule was valid and reasonable; whether the employee knew or should have known about the standard; whether the employer applied the standard consistently; and whether dismissing the employee was an appropriate sanction.”
It is crucial for employers to develop clear policies on workplace misconduct and negligence, to ensure that these policies are communicated effectively, and to ensure that fair procedures are followed when taking disciplinary action against employees.
Understanding Misconduct in the Workplace:
In the South African workplace context, misconduct can be defined as an intentional act or omission by an employee that is considered inappropriate or unacceptable in the workplace and violates a standard of conduct. Employment contracts, codes of conduct, and legislation establish these standards of conduct.
Misconduct encompasses various forms, including but not limited to: insubordination and insolence, absenteeism and poor timekeeping, theft, fraud and dishonesty, violence, assault, harassment, intoxication, and discrimination. Disciplinary outcomes for different forms of misconduct may vary, depending on the severity of the conduct in question, given that misconduct can be further categorised into ordinary and gross misconduct.
Ordinary misconduct refers to less serious breaches of workplace policies and procedures. Generally, these breaches do not directly cause substantial damage, disruption, loss, or harm. Such conduct is addressed through progressive disciplinary measures. It should be noted, however, that ordinary misconduct may justify dismissal if it can be shown that there is a lack of improvement or if the conduct recurs after progressive disciplinary measures have been implemented, as held in Meerholz v Norman (1916) and National Nuclear Regulator v CCMA and others (2016).
Gross misconduct, on the other hand, refers to a severe breach or violation of standards of conduct, policies, and/or procedures, which may warrant immediate dismissal without notice if a procedurally fair inquiry has been conducted and the outcome is substantively fair. The extent of this form of conduct damages the trust relationship between the employer and the employee, making a continued employment relationship intolerable, as held in Waterskloof Municipality v SA Local Government Bargaining Council (Western Cape Division) and Others (2010) as well as South African Revenue Services v Commission for Conciliation, Mediation and Arbitration and Others (2023).
Understanding Negligence in the Workplace:
The definition of negligence in the South African workplace context is largely determined by case law and legal precedents, which influence the interpretation and application of the term. Negligence is a form of misconduct that constitutes a failure to exercise the degree of diligence and care that a reasonable person would in similar circumstances, ultimately resulting in loss, injury, or harm.
Based on Kruger v. Coetzee 1966 (2) SA 428 (AD)’s three-part test, defendants are liable for culpa (fault) if a reasonable person in similar circumstances would have anticipated that their conduct would injure or harm another person or property, or would foresee it resulting in a financial or potential financial loss. It would also be expected of such a person to take reasonable steps against such injury or harm, and such a person can be found negligent if it can be shown that they failed to execute these reasonable steps.
National Union of Metal Workers of South Africa obo Selepe v. ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop [2013] 5 BALR 481 (MIBC) made the following distinction between gross negligence and ordinary negligence: “Ordinary negligence encompasses carelessness or a simple failure to fulfil employment duties. Gross negligence, on the other hand, demonstrates a conscious and voluntary disregard for applying reasonable care, likely to result in severe injury or harm. Gross negligence demonstrates an elevated level of risk beyond typical neglect, emphasising the foreseeable nature and severity of possible harm if appropriate care is not taken.”
The lack of care or diligence accompanying the act or omission renders an employee liable for negligence, not the act or omission itself. If the employee was persistently negligent or if the act or omission proved to be significant, the negligence would have to be gross to warrant termination of the employment agreement.
In Closing:
In order to maintain fair labour practices, South African employers are urged to establish a clear distinction between misconduct and negligence in the workplace. While negligence and misconduct entail similar disciplinary procedures, the substantive fairness of the disciplinary actions taken is based on significantly different criteria and considerations.
When addressing such concerns, employers are urged to have clearly established policies and procedures in place, to communicate them effectively, and to adhere to substantive and procedural fairness criteria upon taking disciplinary action. This approach would not only foster a fair and equitable work environment but would reduce the risk of unfair disciplinary action and the associated legal and financial repercussions for employers.
Contact Invictus for guidance and assistance in navigating workplace misconduct and negligence.
Get in touch with our office at 086 173 7263 or email us at admin@invictusgroup.co.za
