Don’t confuse Poor Performance with Negligence.

Roxanne Fielies

While poor performance may overlap with negligence, and it is vital to understand the difference between the two.
-Negligence: is fault-based – the employee knew what to do and didn’t do it. or didn’t do it to the required standard.
- Poor work performance usually refers to the ability of the employee and whether they are able to do the job. It is either a “misconduct” or “incapacity” issue, and the procedure to deal with poor performance as incapacity is different to misconduct.

If it is shown that the employee had the capacity to meet the minimum performance requirement and to avoid the poor work performance, they can be charged with poor performance, and be disciplined

Poor performance has two categories:
- Incapacity relating to ill health, mental health, or physical disability, which is a topic for another day.
- Incapacity relating to incompetence or incompatibility.
Minimum requirement of the Labour Relations Act:
- Did the employee fail to meet a performance standard?
- If not,
- Was the employee aware, or could reasonably be expected to have been aware of the required performance standard?
- Was the employee given a fair opportunity to meet the required performance standard?
- Was dismissal an appropriate sanction for not meeting the required performance standard?

Did the employee try, but could not?
If the answer is YES, this is poor performance as an incapacity because employee tried to achieve what is expected but is unable to do so or unable to apply the necessary care because of a skills or ability gap.  Training, guidance, mentoring, programmes of improvement is generally required. There is no quick fix.

Could the employee do it, but did not?
If the answer is YES, this would negligence because the employee is fully capable of doing what is expected but does not do what is expected, arising from the deliberate failure to take care

Before dismissing for poor performance, the Labour Court considers the following rules:
- Is the employee unable to perform their work?
- If not, to what extent is the employee capable of working?
- Can the employee’s work circumstances be adapted?
- If not, is there alternative work available?
- Would a reasonable person in the same circumstance have foreseen the reasonable possibility that their misconduct would cause harm to another person or their property?
- Would a reasonable person have taken reasonable steps to prevent such harm occurring?

Negligence & Gross Negligence
Negligence is the deviation from the expected standard of reasonable care in the employee’s position. Gross negligence has more extreme actual or possible repercussions.
Factors which make up Gross Negligence include:
- Willful misconduct
- Conscious and voluntary disregard of the need to use reasonable care,
- It has or is likely to  cause foreseeable grave injury or harm to persons, property, or both.
- It is extreme when compared to ordinary negligence
- Magnitude of the risks involved, such that, if more than ordinary care is not taken, a serious mishap is likely to occur.
- Ordinary negligence and gross negligence have different consciousness or inattention; and both differ from ‘wilful misconduct’, which is conduct that is reasonable calculated to cause damage or injury”
- The employer must be able to show that the employee’s act or omission deviates from the reasonable standard of care expected and can cause harm to persons, property, or loss to the employer.
The degree of gross negligence is assessed on a case-by-case basis, considering the nature of work and the importance of the employee’s  position in the company.

Generally Gross negligence attracts a Final Written Warning or dismissal.

The CCMA generally promotes progressive discipline. Dismissal should be reserved for those instances of severe misconduct

Please contact your assigned consultant or Brentwood Offices to assist you to identify poor performance vs negligence, to avoid undesirable outcomes at the CCMA.

References: ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO (2013) 34 ILJ 2347 (LC), Standard Bank of SA v CCMA (2008) 4 BLLR 356 (LC), (NUMSA obo Selepe v ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop [2013] 5 BALR 481 (MIBC)

Mark - 07:14 @ common, Industrial Relations, Human Resources | Add a comment

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