Defining (Gross) Negligence
The Labour Court dealt with negligence and the application thereof in labour law in National Union of Metalworkers of South Africa (NUMSA) and another v Commission for Conciliation, Mediation and Arbitration (CCMA) and others (2023) 44 ILJ 1575 (LC) at paras 32 to 36. In that matter the employee was Mr Lumka.
At paragraph 32 the Court stated that:
‘[32] Negligence, in short, is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person and in the employment context, the employee’s conduct is compared with the standard of skill and care that would have been expected of a reasonable employee in the same circumstances. The reasonable employee with whom the employee is compared must have experience and skill comparable with that of the employee charged. In labour law, negligence is not applied ‘in vacuo’ or against the general standard of a ‘reasonable person’, but it is applied in the context of the particular workplace or industry, considering the performance standards and procedures set by the employer. Negligence is usually established with reference to workplace rules or procedures applicable in the workplace.
[33] In casu, the Respondent had a specific SOP in place, it required of Mr Lumka to do a daily pre-operation check of the forklift and to complete the checklist. On Mr Lumka’s own version, he did not conduct the pre-operation inspection on the day of the incident, and he did not complete the checklist on a daily basis, but instead completed it on the Monday, in advance, for the entire week. Mr Lumka had not checked any aspects of the forklift, as he was required and expected to do, and as a result, he did not detect the low levels of oil in his forklift, which ultimately resulted in the seizing of the engine. Had Mr Lumka conducted the re-operation check on the day of the incident, he would have noticed that there was no oil in the engine, he would not have started the engine on 20 November 2020 and the engine would not have seized, but because of his failure, the engine seized, and the respondent suffered a huge financial loss. The conduct of Mr Lumka is textbook negligence.
…
[35] The test for negligence remains the same – whether negligence, once established, is gross, is a matter of degree, to be determined considering a number of relevant factors. Those factors are inter alia whether the employee is persistently negligent; the seriousness of the act or omission; whether the act or omission is inexcusable; the employee’s awareness of the performance standard required or the procedure to be complied with; the seriousness of the consequences of the act or omission; damages caused and the skills and experience of the employee or the position held by the employee.
[36] In casu, the arbitrator considered that Mr Lumka was a qualified and licensed forklift operator, who had been in that position for a period of 10 years, who was well aware of the SOP and whose conduct resulted in a huge financial loss for the Respondent. Mr Lumka was experienced, the SOP he had to comply with was necessary and not difficult to comply with and as a result his omission, constituted gross negligence. These are findings and conclusions based on the facts and evidence presented and a proper application of the law, they are not unreasonable.”
The above indicate:
- Negligence is the failure to comply with the standard of care that would be expected of a reasonable employee in the same circumstances (experience and skill) given the performance standards and procedures set by the employer.
- Whether negligence, once established, is gross, is a matter of degree, to be determined considering
- whether the employee is persistently negligent
- the seriousness of the act or omission
- whether the act or omission is inexcusable
- the employee’s awareness of the performance standard required or the procedure to be complied with
- the seriousness of the consequences of the act or omission
- damages caused and the skills and experience of the employee or the position held by the employee.
