As imperfect human beings we turn to make mistakes while conducting our duties once in a while, perhaps as a result of a small distraction.  But how can employers distinguish negligence from gross negligence, can the employer dismiss an employee for being negligent.

In the matter of NUMSA obo Selepe v. ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop [2013] gross negligence versus ordinary negligence was defined as follows:

Gross negligence can be described as a conscious and voluntary disregard of the need to use reasonable care, which has or is likely to cause foreseeable grave injury or harm to persons, property or both. It is conduct that is extreme when compared to ordinary negligence. Gross negligence also focuses on the extent of the risks involved, such that, if more than ordinary care is not taken, a serious accident is likely to occur.

Ordinary negligence and gross negligence accordingly differ in degree of consciousness or inattention; and both differ from ‘wilful misconduct’. The test for negligence is whether a reasonable person in the position of the employee concerned, would have foreseen the harm and would have taken steps to guard against that harm.

The requirements for dismissal for negligence are:

• The negligence MUST be gross. 
• The employee failed to exercise the standard of care and skill that can reasonably be expected of an employee with her or his degree of skill and experience.
• The lack of care and skill manifested itself in an act or omission that did or could have caused damage, harm or loss to the employer.   

First time ordinary negligence is not dismissible unless it is persistent and after progressive disciplinary steps have been followed.