Most employers are under the impression that the poor performance of an employee cannot form a dismissible offence. This is in fact a misconduct and can range from negligence through to gross negligence and to the most severe, dereliction of duty. I have recently had the opportunity of addressing such a matter where an employee, in failing to perform her duties, cost the company R 2 million. Although an extreme example, the employer was under the impression that he would then have to counsel the employee and was only entitled to issue a written warning. This is far from the legal truth. Under such circumstances, to support dismissal, the employer must be able to show what the employee’s duties were and also that the employee failed to perform his or her duties completely. I will continue to explain this point further.

The test for negligence is whether a reasonable person in the position of the employee concerned would have foreseen the harm resulting from the acts/omissions and would have taken steps to guard against that harm. Thus wilfulness or intent is not a requirement for disciplinary action.

At all times, one must take in to account that the employer bears the onus of such proof and must thus provide a detailed offence. An employer must provide evidence that the performance standards set by the employer were reasonable. Further a causal connection must be established between an employee’s act and the occurrence/potential occurrence of the loss.

In order for a negligent act to warrant dismissal, the act must be ‘gross’. In the case of Unilong Freight Distributors (Pty) Ltd v Muller (1998) 19 ILJ 229 (SCA) it was established that in order for the act to be ‘gross’, the act must be serious and the negligence inexcusable.

The courts have been far less tolerant of employees that claim to have a set skill and should thus be aware of the extent of their performance.

An example can be drawn from the case of Nkosi v Nampak (2010) MEIBC 8.14.1. The employee in this matter was a line technician, and one of his duties included removing and replacing cassettes. It was common cause that the machine broke down and the resulting time and sales lost and the cost of effecting the necessary repairs amounted to approximately R250 00. It was the employer’s evidence that the cassette had been poorly inserted, that it had come loose and that it had damaged the machine. The essence of the employer’s argument was that the employee had failed to follow the necessary procedures when replacing the cassette and that this caused costly damage.

The machine had been giving problems that day, however they had been rectified by replacing a new cassette, by the employee in question. He admitted that he had not checked the replacement cassette. The problem in cases like these is that there is a fine line between poor performance and negligence. The arbitrator stated that negligence warrants dismissal only if it is gross negligence, but where the consequences of a single act has disastrous consequences, dismissal may well be justifiable.

The arbitrator found that he had not exercised reasonable care, given that the machine had been giving problems. It was also found that the employee could have foreseen the result of his failure to exercise reasonable care, as a trained, qualified and reasonable technician he should have been aware of the importance of the proper mounting of the cassettes. The employee admitted that he had dealt with numerous breakdowns. The dismissal was ultimately deemed appropriate in the circumstances.

To end, I would like to draw the employer’s attention to the requirements of a dismissal for a negligent act:

• The employee must have failed to exercise the standard of care and skill that could reasonably be expected of an employee with his/her degree of skill and experience;
• The lack of care and skill manifested itself in an act/omission that did (or could have) caused loss to the employer;
• That the loss/potential loss to the employer resulted or could have resulted from the employee’s negligent act/omission; and
• That the negligent act was gross.