[See:  7 BLLR 862 (LAC)]. Normally, therefore, negligence and poor work performance should be treated with warnings. 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. Poor work performance relating to incapacity relates to the ability of the employee to perform a certain task or function required by the employer. [See also Yung Chun Fishery Company Limited v Transnet Limited t/a Portnet case number AC30/97 (judgment delivered on 1 September 2000)]. In conclusion, dismissed employees often use as a defence in cases of dismissal on the ground of negligence lack of; or non-existence of professional in-service training and continued education by the employer either as a complete defence; or as mitigating circumstances. The notion of ‘wilful negligence’ is, therefore, a contradiction in terms. "Recklessness thus connotes the involvement of an element of risk. The writer will make reference to, and analyse a collection of authoritative materials relevant to the stated problem, which comprises of binding judicial decisions and other persuasive authorities such as Labour Court judgments, arbitration awards and authoritative publications on the subject matter. Employees making mistakes is part of the risk of doing business, and distinguishing a "mistake"from "negligence", "gross negligence", or "intentional wrongdoing"by the employee ought to place quite a burden of proof on the employer. This could involve: Harassment; Bullying; Fighting; Aggressive or intimidating … This has been confirmed by the continuous complaints from your direct manager and your colleagues. As Wessels J stated in CSAR v Adlington & Co 1906 TS 964 at 973: "A person is guilty of gross negligence who gives no consideration whatever to the consequences of his act, as where a person who takes charge of property leaves it so exposed that thieves may carry it off. 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. In such event, it would be incumbent on the employer to submit evidence in rebuttal, failing where to the presiding Commissioner may find in favour of the employee and order either retrospective reinstatement or a substantial amount of compensatory relief to the employee. It is conduct that is … Instead, the courts decide each case based on its own merits. CEO strives to be that voice for Employers. A person who is found guilty of gross negligence usually knows, or should have known of the danger involved in the conduct they performed. This is because … Negligence happens casually as well as formally, with the latter … 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? These awards are designed to punish the defendant and to deter similar future conduct … The surviving spouse and family can certainly pursue a claim against an employer if that … Gross negligence is the extreme indifference to or reckless disregard for the safety of others. We work to prove negligence by establishing the party had a duty of care and that a breach in this care was made by the negligent party. This has been constantly stated by this Court for some 50 years. An employer can be sued for gross negligence in Texas if the employee died as a result of the accident. “The carelessness or mere failure which constitutes ordinary negligence, changes in gross negligence to an indifference to, and blatant violation of a workplace duty. Gross negligence is when the responsible party didn’t just act irresponsibly, but “grossly” irresponsibly, falling far short of the duty of care. In order to warrant a sanction for dismissal on a first offence for gross negligence, an employer must be able to prove that the employee was grossly negligent in that the employee committed any act or omission which deviates from the reasonable standard of care expected in the workplace and which can cause harm to persons and or property or loss to the employer. Gross misconduct can include acts such as theft, physical violence, gross negligence and serious insubordination. In order for an accident victim to prove gross negligence, he or she will have to convince the courts that the defendant knew his or her actions were dangerous, yet decided to act anyway. You can define gross negligence … Employees may be guilty of negligence even if no actual harm results from their acts or omissions; what matters is if they might have caused harm. In some jurisdictions a person injured as a result of gross negligence may be able to recover punitive damages from the person who caused the injury or loss.. Negligence … Gross negligence, when proven, entitles the plaintiff to exemplary damages, also known as punitive damages. But in the Afrox case, the employee had vast experience and worked in an environment in which most decisions were matters of life or death. Historically in Massachusetts, proving gross negligence was a very important step in an accident in which the injured party was a passenger in the vehicle, rather than the driver. In NUMSA obo Selepe v. ORAWAB Investments (Pty) Ltd t/a Bergview Engen One-Stop  5 BALR 481 (MIBC) The Commissioner, defined gross negligence versus ordinary negligence as follows: “The carelessness or mere failure which constitutes ordinary negligence, changes in gross negligence to an indifference to, and blatant violation of a workplace duty. The commentary expressed herein is that of the writer and not that of any professional organisation or entity with which the writer may be associated with. The degree of negligence which is called gross for one purpose may not necessarily be thought for another". The Labour Relations Act Code of Good Practice Section 9 of Schedule 8 sets out the requirement for fair guidelines for dismissal, it provides that Any person determining whether a dismissal for poor work performance is unfair should consider: In Standard Bank of SA v CCMA (2008) 4 BLLR 356 (LC), the Labour Court set the inquiry that must be followed by the employer before dismissing an employee for poor work performance: According to Grogan, J negligence is the failure of the employee to comply with the standard of care expected of a reasonable employee in the position. Negligence … Gross Negligence Whether the negligence is on the part of the employee or employer is irrelevant under workers comp. It is vital that companies understand the difference between negligence and gross negligence as this could be the difference at an enquiry of being in a position to find an employee guilty of the charge. The surviving spouse and family can certainly pursue a claim against an employer if that employer was grossly negligent and caused the death of the employee. Gross negligence often results in a premises liability injury. [See: PAK le Roux "Negligence – The Grounds for Disciplinary Action’ Contemporary Labour Law Vol. 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. States may have varying negligence laws depending on their civil lawsuit system and your specific circumstances. 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. Well as our courts negligence ’ is, therefore, negligence and poor work performance as forms misconduct... 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