Understanding Gross Misconduct, Negligence, and Dishonesty in the Workplace

When an employer is faced with the responsibility or duty to issue a warning or notice to attend a Disciplinary Hearing, it is crucial to understand the term gross before referring to the conduct of the employee as such. Employers should not use the term loosely, as this could result in the employee being found not guilty based on the charge.

Here are some points to consider when determining whether to label the conduct as gross or not.

Gross Misconduct

The Code of Good Practice provides guidelines on what constitutes gross misconduct. These examples are:

• Wilful damage to property that belongs to the employer;
• Wilfully endangering the safety of other staff members and/or clients;
• Gross dishonesty;
• Gross insubordination;
• Physically assaulting another staff member and/or a client.

Negligence vs. Gross Negligence

It’s important to know the difference between negligence and gross negligence. Negligence does not typically lead to dismissal for a first offence, whereas gross negligence could warrant dismissal immediately.

Negligence has a 3-leg test:

1. Whether the reasonable person would have foreseen the possibility that the incident might have occurred or that his conduct might bring about that incident, causing harm or damage.
2. Whether the reasonable person would have taken steps to guard against such a possibility.
3. That the conduct of the accused differed from the conduct expected of the reasonable person with the same skills and expertise expected of someone in that position.

If the answer to the above questions is “yes,” then the employee is likely guilty of being negligent. The test depends on the skill level reasonably expected from someone in the same position.

Gross negligence occurs when the employee is persistently negligent or if the act or omission is very serious, especially when the employer can prove actual damage or financial loss.

Case Law: Selepe v. ORAWAB Investments

National Union of Metal Workers of South Africa obo Selepe v. ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop [2013] 5 BALR 481 (MIBC)

Gross negligence is defined as a conscious and voluntary disregard of the need to use reasonable care, which has caused or is likely to cause foreseeable grave injury or harm to persons or property.

Case Law: Afrox Healthcare Ltd v CCMA

Afrox Healthcare Ltd v CCMA & others [2012] 7 BLLR 649 LAC

In this case, a patient died after post-operative complications were not communicated to the day staff. The senior nurse in charge failed to supervise properly, neglected to alert the doctor of errors, and did not disclose the patient's condition at handover. The court held that dismissal was fair given the severity and the nurse’s responsibilities.

This case exemplifies gross negligence through clear disregard for care and reasonable action, likely resulting in harm.

Negligence often arises from simple carelessness. But when that carelessness becomes a blatant disregard for standards, knowing it could cause grave harm, you are dealing with gross negligence.

If an employee is aware that their neglect of duty could result in serious damage, that negligence can be considered gross.

Gross Dishonesty

Gross dishonesty includes any of the following:

• Deception
• Illegal acts (e.g. theft, fraud)
• Unethical acts detrimental to the trust between employer and employee

When disciplining for dishonesty, the issue of trust arises. If an employee is found guilty of gross dishonesty, the employer has grounds to claim that the trust in the employment relationship is broken — which strongly affects the sanction decision.