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The difference between negligence and gross negligence and how to deal with it

by , 23 April 2015
First of all, keep in mind that whenever an employee signs his employment contract, he makes his services and skills available to you. He also agrees to do his tasks with the diligence and care you can expect of him in his position. If he doesn't fulfill this, he's negligent.

But is it just negligence or is it something more?

Let's take a look...

Let's look now at how we define negligence and gross negligence:

This is a broad term for an employee's conduct or failure to act. It shows he isn't applying an acceptable level of care to his work duties. This leads to, or can lead to, negative consequences for you.

For example, production delays, damage to equipment, financial losses, injury to co-workers or other people etc.

When we talk about gross negligence we mean severe negligence with more serious actual or possible consequences. Continuous negligence that isn't corrected despite warnings can also add up and be treated as gross negligence

Example: Gross negligence

Bob is a tractor driver working for a large farming enterprise. One of his duties is to check and complete a  maintenance report before driving it. Bob ticked off the report without actually checking the items on it. Because of this, he didn't notice the tyres weren't on properly.

He then drove the tractor on the wheel rims causing  R32 000 damage. His defence that he had been following instructions when driving the tractor didn't save him from dismissal for gross negligence. If he had done a proper inspection, he would've seen the damaged tyres before driving the tractor.

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Here's a quick test for you to check if your your employee been negligent!

Apply this test to work out if an employee's been negligent.

Think about if:

•  The employee didn't exercise the standard of care and skill you can reasonably expect from him;
•  The act or failure to act actually led to damage, harm or loss. Or if it had the potential to lead to damage, harm or loss; and
•  The loss or potential loss that came directly from his negligence.

When applying this test, judge the employee's action or failure to act against:
•  The standard of a reasonable employee in that particular job, with his particular skills;
•  The circumstances at the time of the negligence;
•  Your industry or sector standards;
•  If the employee could have or should have seen the possible harm resulting from the negligence; and
•  If the employee had the means to take steps to guard against it.

Warning! You must judge the negligence in the employee's working environment.  

For example, an admin clerk negligently files certain documents in the wrong place. This causes delays and annoyance for the client when he needs the documents. This should result in a different sanction from that for the negligence of a nursing sister. If she's in charge of the intensive care unit of a hospital and neglects to carry out important checks on patients, this is a lot more serious.

Why negligence is misconduct, not incapacity

Incapacity is when an employee can't carry out the tasks and duties of his job properly. This is through no fault of his own. Incapacity can either be due to either poor performance or ill health.

It's incapacity when an employee fails to perform duties properly through circumstances beyond his control. For example, a lack of mental or physical capacity.  

Negligence is misconduct because an employee knows and understands what you expect from him. He's aware of the level of care you require to carry out his work tasks satisfactorily. But he fails to take sufficient care.

Note that you should include both 'ordinary' negligence and gross negligence in your disciplinary code or policy. This is because ordinary negligence isn't a dismissible offence, especially if it's a first offence.

And remember, if you can't prove actual loss, but you can show loss could've happened as a direct result of the 'wilful' negligence of an employee, you can dismiss him for gross negligence.

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