There is a difference between ordinary negligence and gross negligence because ordinary negligence is usually not a dismissible offence – but gross negligence can be a dismissible offence even for a first offence.
The legal test for negligence is an objective one. If you had been in that position, what would you have done differently?
You need to consider what you think a “reasonable person” would have done in this situation, and also what you think a “reasonable person” would not have done. It depends on the facts of the case.
What is Gross Negligence?
Recent guidelines provided by the Labour Court of South Africa on gross negligence are helpful.
In the court’s opinion, the conduct must depart in such a way from the reasonable person’s standards that it may be considered “extreme”.
The conduct needs to either demonstrate conscious risk-taking or complete obliviousness – or, where there is no conscious risk-taking, a total disregard to take care.
In Summary
Negligence at work can be classified as “ordinary” or “gross” depending on its degree – and that in turn demands a judgement call.
To begin, determine what a reasonable standard is. Analyse the facts to determine the gap between the employee’s behaviour and the standard.
Can the gap be considered extreme?
Are his actions completely disregarding his duty or do they show no consideration whatsoever to the consequences of his actions?
Answering “Yes” indicates that the act or omission constitutes gross negligence.
In most cases, negligence occurs due to the failure to act with the required level of care.
The act of gross negligence occurs when there is blatant disregard for the standard of care, knowing such disregard is capable of causing grave injury or harm, or when the act of carelessness results in severe loss or damage.
