The difference between negligence and poor work performance relates to the nature of the dismissal. Negligence is a fault-based dismissal and said to be misconduct, while poor work performance can be fault-based or non-fault-based and accordingly can be either misconduct or related to incapacity of the employee. Due to the fact that poor work performance may overlap with negligence, it is therefore important for an employer to ensure that they know the elements of each form of dismissal so as to avoid undesirable outcomes in the CCMA or Bargaining Councils.
Poor work performance
Poor work performance in Labour Law can either be a “misconduct” or “incapacity” issue. The employer needs to determine which category it falls within, as it determines which procedure must be followed in accordance with the Labour Relations Act.
Every employee has a duty of care in the workplace, therefore where actions of the employee are deemed to be avoidable, and the employee has failed to exercise reasonable care, this will amount to misconduct, and the employer must discipline the employee according to the disciplinary procedure or code of the employer. If it can be proved that the employee had the capacity to meet the minimum performance requirement and had the capacity to avoid the poor work performance, they can be held blameworthy for the poor performance and disciplined.
Poor work performance relating to incapacity relates to the ability of the employee to perform a certain task or function required by the employer. The incapacity may manifest due to physical reasons caused by ill health, mental issues or physical disability. Alternatively, it may relate to non-physical or mental issues but rather due to incompetence or incompatibility issues of the employee.
The Labour Court defined the differences between poor work performance and negligence in ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO (2013) 34 ILJ 2347 (LC) by looking at the following questions: “Did the employee try but could not?” and “could the employee do it, but did not?”. If the answer to the first question is “yes”, this would constitute poor work performance as the employee has tried to achieve what is expected of him, but is unable to do so or unable to apply the necessary care. If the answer to the second question is “yes”, this would constitute misconduct. The employee is fully capable of doing what is expected of him, but fails to achieve what is expected, which can only arise from the deliberate failure to take care.
The Labour Relations Act Code of Good Practice Section 9 of Schedule 8 sets out the requirement for fair guidelines for dismissal, it provides that Any person determining whether a dismissal for poor work performance is unfair should consider:
- whether or not the employee failed to meet a performance standard; and
- if the employee did not meet a required performance standard whether or not-
- the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
- the employee was given a fair opportunity to meet the required performance standard; and
- the dismissal was an appropriate sanction for not meeting the required performance standard.
In Standard Bank of SA v CCMA (2008) 4 BLLR 356 (LC), the Labour Court set the inquiry that must be followed by the employer before dismissing an employee for poor work performance:
- Is the employee unable to perform his or her work?
- If not, to what extent is the employee capable of working?
- Can the employee’s work circumstances be adapted?
- If not, is there alternative work available?
Negligence and Gross Negligence
According to Grogan, J negligence is the failure of the employee to comply with the standard of care expected of a reasonable employee in the position. In general terms, an employee is negligent if his or her conduct deviates from the conduct that a reasonable person would have adopted in the same circumstances. The following two elements should have to be considered:
- Would a reasonable person in the particular circumstances of the employee, have foreseen the reasonable possibility that his/her conduct would cause harm to another person or his/her property?
- Would a reasonable person have taken reasonable steps to prevent such harm occurring?
In Labour Law, the reasonable person applies to the reasonable employee in each industry or sector depending on the nature of the work. In NUMSA obo Selepe v. ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop  5 BALR 481 (MIBC) The Commissioner, defined gross negligence versus ordinary negligence as follows:
“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. It is conduct that is extreme when compared to ordinary negligence. Gross negligence also focuses on the magnitude of the risks involved, such that, if more than ordinary care is not taken, a serious mishap is likely to occur. Ordinary negligence and gross negligence accordingly differ in degree of consciousness or inattention; and both differ from ‘wilful misconduct’, which is conduct that is reasonably calculated to cause damage or injury.”
In order to warrant a sanction for dismissal on a first offence for gross negligence, an employer must be able to prove that the employee was grossly negligent in that the employee committed any act or omission which deviates from the reasonable standard of care expected in the workplace and which can cause harm to persons and or property or loss to the employer. The standard or degree of gross negligence is applied to the prevailing facts of each case and determined according to the nature of the work and also the importance of the position that the employee was occupying in the company. Depending on the facts of the case and the severity of the gross negligence committed by the employee, the sanction may vary between a final written warning being issued or dismissal. It must, however, be kept in mind that the CCMA generally promotes a stance of rather following progressive discipline and that dismissal should be reserved for those instances of severe misconduct.
Article by: Wesley Lazarus
Dispute Resolution Official – George