A machine at the workplace has broken down, it is at a standstill and production has stopped. The employee operating the machine has pulled up his shoulders and offering an explanation in the line of “maybe the machine is old; maybe it is worn”.
On further investigation, the mechanic indicates that the machine has been operating without oil. Thus, the problem with the machine was not wear and tear and certainly no accident but rather due to the negligent actions and/or omission of the employee himself.
Therefore, the employee appointed to operate the machine will need to be charged. Surely if the employee exercised his duties as an operator and did routine checks, the absence of oil would have been noticed and the damage to the machine and loss of production would have been avoided. The employee did not act as a reasonable operator would have, and as such, he was negligent.
There are many instances where so-called accidents occur in the workplace, but in most instances, an accident is not merely an accident but can be attributed to negligence on someone’s part.
In labour law, as well as other areas of law, negligence bears the following meaning:
It is a culpable failure to exercise the degree of care expected by a reasonable person, in the case of labour law, the reasonable employee. This reasonable employee comparison is where a reasonable employee with the same skills, experience and qualifications is compared to that of the accused employee in relation to that employee’s act or omission.
Thus, would a reasonable employee have acted in the same manner as the accused employee? Could precautions have been taken and could harm/damage have been avoided?
Negligence can take two forms, an act or an omission (a failure to act). The question is, would a reasonable employee in the position of the accused employee have been able to possibly foresee the harm/damage and would such an employee reasonably have been able to take steps to avoid it.
An employee can be found guilty of negligence even if there had been no harm/damage but merely due to the fact that there may have potentially been harm/damage.
If the employee should have foreseen the potential harm/damage but nevertheless continued with the action or omission, the negligence will also be paired with carelessness making the negligent act even more serious. This can then also be classified as reckless and intentional causing of damage or potential damage to the employer.
In most instances, negligence at first instance is treated with a warning. Except where the negligence can be classified as gross amounting to pure recklessness, such an employee will not be trusted to continue performing his duties.
There are rare cases when accidents are truly accidents but, in most cases, harm or damages at the workplace will be attributed to an employee not taking the necessary, reasonable care as expected, thus boiling down to pure negligence and such employees will then be held accountable.
Notwithstanding the aforementioned, it has become clear in practise that when an employee is indeed dismissed for negligence, care must be taken to ensure that the negligence was indeed gross on the first offence, or where the dismissal is completed after progressive discipline has been implemented, that the acts of negligence are indeed based on the same or similar circumstances.
The identification of negligence is a subjective one, and as such, a Commissioner might very well not agree with the grossness thereof or even that the act or omission even amounts to negligence.
Article by: Carlene van der Lith
Dispute Resolution Official – Kimberley