Negligence and gross negligence in the workplace

Negligent conduct or actions of employees can cause the employer damage, including financial damages. In such instances the employer might consider taking disciplinary measures and as such should investigate the matter to determine whether the employee’s actions constitute negligence.  If so, the employer should further determine if the employee’s actions constitute gross negligence to ensure that the correct disciplinary process is followed and implemented.

Why? What’s the difference?

It is vital to determine the appropriate procedures to follow in terms of workplace policies and disciplinary codes.  Generally, if an employee is found guilty of negligence, the type of negligence (i.e. negligence vs. gross negligence) will have different sanctions.  Depending on the disciplinary code in the workplace, gross negligence might be met with a sanction of dismissal after a disciplinary hearing is concluded, as opposed to ‘ordinary’ negligence which might only lead to the employee being issued a warning.

Negligence

In his book titled Workplace Law (11th edition), John Grogan states the following in consideration of an employee’s negligence:

“In labour law, negligence bears the same meaning as it does in other areas of law: the culpable failure to exercise the degree of care expected of a reasonable person. In the workplace context, the ‘reasonable person’ would be a responsible employee with experience, skill and qualifications comparable to the accused employee. Negligence can manifest itself in acts or omissions. The test is whether a reasonable person in the position of the accused employee would have foreseen the possibility of harm and taken steps to guard against that harm.”

Gross negligence

Gross negligence can be described as an act or omission that is so careless or reckless that it shows a complete disregard for safety or well-being.  It occurs when an employee’s conduct deviates from the reasonable person’s standard to such an extent that it may properly be categorised as extreme. Our courts have held that it must demonstrate, in cases where there is conscious risk-taking, a complete lack of awareness or concern, and in the absence of conscious risk-taking, it demonstrates an absolute failure by the employee to exercise care.

Gross negligence is an elevated level of risk beyond typical neglect.  It emphasises a foreseeable possibility of severe harm if appropriate care is not taken, and/or a conscious and voluntary disregard for applying reasonable care, which is likely to result in severe injury or harm.

An objective test

From these descriptions we see that an objective test is used to determine negligence, and for gross negligence it needs to be assessed whether the employee demonstrated a high degree of reckless disregard for his/her acts or omissions, and a failure to exercise the standard of care that was reasonably expected of an employee with their degree of knowledge, skill and experience.

It is important to remember that onus lies with the employer to prove that the employee is guilty of negligence and/or gross negligence.  Where the employee is dismissed on grounds relating to gross negligence, the employer must be able to prove that dismissal was substantively and procedurally fair in consideration of the merits of the case.

Conclusion

Distinguishing between negligence and gross negligence is crucial in determining the appropriate disciplinary action in the workplace. Gross negligence involves a higher degree of reckless disregard for the safety or well-being of others, showing a departure from the standard of care expected of a reasonable employee. Employers must conduct thorough investigations to assess whether an employee’s conduct meets the higher set standard, as gross negligence often justifies more severe sanctions, including dismissal. The employer bears the burden of proving both the occurrence of gross negligence and the fairness of any dismissal that may follow, ensuring that disciplinary measures align with both substantive and procedural fairness.

The content in this article is for informational purposes only and should not be construed as legal advice. Please contact the LWO for advice and/or assistance.

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