In the realm of employment, there has always been a debate about when it’s appropriate to terminate an employee for a first instance of negligence. Allow us to simplify this complex topic for you.
In determining the justification for dismissal, specific criteria must be met:
- Loss or Damage: The employee’s actions should have resulted in an actual, tangible loss or damage to the employer, not just a potential one.
- Foreseeability: The employee should have reasonably foreseen that their actions could lead to loss or damage.
- Gross Negligence: The employee’s conduct should amount to a reckless dereliction of duty, not just a minor oversight.
Robor (Pty) Ltd v MEIBC and Others
In the matter of Robor (Pty) Ltd v MEIBC and Others, the employee was found guilty of paying other employees for work that they had already received payment for. The negligence cost the employer a substantial amount of R40,000, and the decision at the disciplinary hearing was to dismiss the employee.
The CCMA decision
At arbitration, the CCMA commissioner did not agree that dismissal was the appropriate punishment. He reasoned that the employee’s negligence did not qualify as “gross” because it was limited to failing to analyse cost allocations properly. He also considered the employee’s 30 years of service a mitigating factor.
On review at the Labour Court
The employer, unhappy with the CCMA finding, challenged the decision in Labour Court, arguing that the commissioner had downplayed the seriousness of the charges without proper justification.
The court agreed with the employer that the commissioner’s reasoning was flawed. The judge emphasised that once it is established that an employee was negligent, the next step is to determine the seriousness of that negligence.
In this case, the employee’s negligence caused significant and avoidable costs over several months. The court found it difficult to understand how anyone could not see this as gross negligence. As a result, the original award was set aside.
This case highlights the importance of carefully assessing the gravity of negligence in the workplace. While first offences should be considered with some leniency, serious negligence resulting in significant losses can indeed lead to dismissal. Employers must strike a balance between fairness and maintaining workplace standards.