Gross Negligence and Fatal Work Accidents Michael P. Fleming | August 24, 2017 Under the Texas Workers’ Compensation Act , workers’ compensation benefits are available to employees for work-related injuries and family members of employees who suffered a fatal work injury . It often involves the deliberate disregard of another person’s safety. 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. The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. 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. These are different to acts of misconduct, examples of which might include persistent lateness or unauthorised absence from work. Didcott J followed the earlier dictum of MurrinRosenthal v Marks 1944 TPD 172 at 180 mainly that gross negligence denotes "recklessness, an entire failure to give consideration to the consequence of his actions, a total disregard of duty". The purpose of this article is to attempt to address the problems and difficulties experienced by employers in the healthcare sector in the administration of disciplinary action in the event where an employee stands to be disciplined based on an allegation of negligence. If an employee had to sue, the employee would have to prove that the employer had done (a) something negligent (careless) and(b) the employer’s negligence directly led to the employee’s injury. If, following a proper disciplinary procedure, you are found to be guilty of an act of gross misconduct, your employer will be entitled to dismiss you without any notice or payment in lieu of notice. It is willful behavior done with extreme … In the article supra, Le Roux observes that the concept of negligence is one which has attracted much attention, not only in the field of Labour Law, however, especially in the field of Criminal Law and the Law of Delict. Where negligence or poor work performance results from circumstances beyond an employee’s control, such as physical or mental incapacity, it should be treated as such. ", The Honourable Judge Howie went on to follow the dictum in S v Dhlamini 1988 (2) SA 302 (A) at 308 [also reported at  2 All SA 106 (A) Ed] -, '[T]hat gross negligence includes an attitude or state of mind characterised by "an entire failure to give consideration to the consequences of one's actions, in other words, an attitude of reckless disregard of such consequences" (at 143F).'. Requirement (a) (ii) is sometimes overlooked. In most arbitration cases which served before the writer and where the Applicant (employee) was dismissed on the ground of negligence, the Respondent (employer’s) disciplinary code or disciplinary rules made reference to the disciplinary offence of negligence or gross negligence. CEO strives to be that voice for Employers. An individual found guilty of gross negligence … The authoritative materials and literature in respect of the concept of negligence are often technical. Gross Negligence. 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. Accordingly, reasonable man is not an exceptionally gifted, careful or developed person, but neither is he underdeveloped nor someone who recklessly takes chances or who has no prudence. Now let us see, can an employer sue an employee for negligence at work? Gross Negligence Defined: In order to justify summary dismissal as an appropriate sanction for negligence, the employer carries an onus to prove that the acts or omissions as it manifested … To determine negligence the courts employ the classic three-part test as formulated in Kruger v Coetzee 1966 (2) SA 428 (AD). He was an experienced nurse held in high esteem by his peers. 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. Gross negligence is more than simple carelessness or failure to act. The following two elements should have to be considered: In Labour Law, the reasonable person applies to the reasonable employee in each industry or sector depending on the nature of the work. This has been constantly stated by this Court for some 50 years. 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 Court in effect held that the senior nurse failed to properly supervise his subordinate, and failed to act responsibly when realising that the patient’s condition was deteriorating. Now let us see, can an employer sue an employee for negligence at work? The immediate question that comes to mind is what can be termed as ‘negligence ordinary’ or ‘gross negligence’, when will it constitute a disciplinary offence, and when will dismissal be justified on this ground? Therefore, the operational requirements and/or demands by the employer; and the public’s expectation of a “zero tolerance” approach to the incidence of gross negligence is to be expected and respected by every employee employed in the healthcare sector. 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. 9 Apr 2018 By Claire Brook. It is conduct that is extreme when compared to ordinary negligence. The nurse/supervisor in charge of the night staff and an assistant were charged with negligence and dismissed. As we said earlier, negligence results from a party failing to provide reasonable care to someone and therefore, performs a careless act resulting in harm and loss for another party. The Labour Appeal Court held that even without the testimony of the junior nurse, there was abundant evidence to prove that the senior nurse had failed lamentably to perform the duties expected of him. You have been neglecting your duties either intentionally or unintentionally. It could be argued that every patient admitted to a hospital should have the confidence that every effort would be utilised to maximise that patient’s chance of recovery, if not survival. It is conduct that is extreme when compared to ordinary negligence. The majority of work injuries are caused by the negligence of the worker, another employee, an employer or a third party. Grogan J in “Deadly Negligence” supra summarised and commented on Afrox as analysed hereunder. A person who is found guilty of gross negligence usually knows, or should have known of the danger involved in the conduct they performed. 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. To establish what is meant by negligence, Le Roux supra noted that the under-mentioned general principles are relevant. The test is whether a reasonable employee in the position of the accused employee would have foreseen the possibility of harm and taken steps to avoid that harm. However, the difference is one of degree and not kind (indicating that gross negligence is not wholly divorced from simple negligence). Gross misconduct is misconduct so serious as to justify the immediate dismissal of an employee. In the authoritative publication by Grogan J, Dismissal, Juta 2010 at 200 to 202, the learned author deals with negligence as well as poor work performance. Gross negligence is when the responsible party didn’t just act irresponsibly, but “grossly” irresponsibly, falling far short of the duty of care. There is, however, one possible exception the senior managerial employee who has warranted his skill, and whose work is so important that a single lapse could have or has had disastrous consequences for the employer. It is important to record that strictly speaking the inclusion of ‘negligence’ as a disciplinary offence may lead that the trier of a fact may in error interpret negligence as denoting dolus [intention] which comprises the direction of the will [willfulness] to commit a prohibited act; or an intention by the employee to deviate from the standard of conduct that the or the notional reasonable man [person] would have adopted. Unless your employer did something to harm you on purpose, you generally are not going to be able to sue him for negligence, even if he was egregiously careless and reckless. 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