[16] To the extent that it might be suggested that another act of gross negligence was required to justify the employee’s dismissal, this cannot be so. There can be no misconduct in the form of gross negligence without negligence also being present. Gross negligence inevitably has the same core content as the concept of ‘ordinary’ negligence; in other words, the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person. In this sense, the employee repeated the same form of misconduct when he failed to raise RQ’s and brought about pre-commitments. The difference between negligence and gross negligence, as the applicant’s disciplinary code suggests, is a matter of degree. The commissioner’s reasoning and finding has the absurd result that if the employee had previously been issued with a final written warning for negligence, his dismissal would have been justified.
Ford Motor Company (Pty) Ltd v CCMA (PR232/2014) [2015] ZALCPE 44 (16 October 2015) per Van Niekerk J.
Further excerpt
[17] The commissioner’s omission had the consequence that the concept of progressive discipline was ignored. In National Union of Mineworkers & another v and Amcoal Colliery t/a Arnot Colliery & another [2000] 8 BLLR 869 (LAC), the Labour Appeal Court suggested that even where present offences were unrelated to prior misconduct, an employee’s disciplinary record should not be disregarded in the assessment of a fair sanction.
Where a code provides (as it does in the present instance) for a progression of penalties, the rationale is that there would come a stage beyond which the accumulated penalties cannot be allowed to progress further, and where the cumulative effect provides clear evidence of indiscipline which would render a continued employment relationship intolerable. In the present instance, it is clear that the approach of progressive discipline adopted by the applicant was not having the desired effect.
Insofar as the tolerability or otherwise of continued employment is concerned, one of the reasons for the imposition of the sanction of dismissal was quite obviously that the applicant felt that it could not leave the employee in charge of any of its affairs, given that he could not be trusted to conduct himself in compliance with his fundamental duties. Further, evidence was led that this failure had the potential of causing significant harm to the applicant, running into hundreds of thousands of Rands in the event of a line stoppage. The commissioner notes, in paragraph 10 of his award, that three of the applicant’s witnesses testified that they could no longer trust the employee to work at the applicant’s plant, in the sense that they had no confidence in his ability to discharge his duties, given his prior conduct. That evidence cannot be ignored.