(Also applicable on other professional sectors)
By Johann Scheepers
The importance of highly qualified and skilled employees employed within the healthcare sector speaks for itself; especially due to the very environment within which nurses are employed, which requires a substantial standard of skill and degree of care by virtue of the fact that human lives may be at stake in the event of failure to exercise the expected standard of care and skill by an employee.
It could be argued that every patient admitted in a hospital should have the confidence that every effort would be utilized to maximise that patient’s chance of recovery, if not survival.
Therefore, the operational requirements and/or demands by the employer; and the public’s expectation of a “zero tolerance” approach to the incidence of gross negligence is to be expected and respected by every employee employed in the healthcare sector.
The purpose of this memorandum is to attempt to address the problems and difficulties experienced by employers in the healthcare sector in the administration of disciplinary action in the event where an employee stands to be disciplined based on an allegation of negligence.
The writer will make reference to, and analyse a collection of authoritative materials relevant to the stated problem, which comprise of binding judicial decisions and other persuasive authorities such as Labour Court judgments, arbitration awards and authoritative publications on the subject matter.
What is Negligence?
In most arbitration cases which served before the writer and where the Applicant (employee) was dismissed on the ground of negligence, the Respondent (employer’s) disciplinary code or disciplinary rules made reference to the disciplinary offence of negligence, or gross negligence.
It is important to record that strictly speaking the inclusion of “negligence” as a disciplinary offence may lead that the trier of a fact may in error interpret negligence as denoting dolus [intention] which comprises the direction of the will [willfulness] to commit a prohibited act; or an intention by the employee to deviate from the standard of conduct that the diligens paterfamilias or the notional reasonable man [person] would have adopted.
In order to be negligent, it is not necessary for an employee to have intentionally or wilfully deviated from the standard of conduct that the notional reasonable man [person] would have adopted. It is sufficient that deviation took place. The notion of “wilful negligence” is therefore a contradiction in terms. This notwithstanding, in contemporary labour law it is not unusual for disciplinary codes to contain references to the disciplinary offence of negligence or gross negligence.
To determine negligence the courts employ the classic three-part test as formulated in Kruger v Coetzee 1966 (2) SA 428 (AD). Holmes JA said the following at 430 E – H:
“For the purposes of liability culpa arises if –
(a) a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.
This has been constantly stated by this Court for some 50 years.
Requirement (a) (ii) is sometimes overlooked.
Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case.
No hard and fast basis can be laid down.
Hence, the futility, in general, of seeking guidance from the facts and results of other cases”. [Courtesy: Advocate B Geach SC].
Dismissals are often challenged on the ground that dismissal was an inappropriate sanction in that the employer failed to prove “gross negligence”; and therefore a disciplinary sanction short of dismissal should have been meted out.
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? (See: Prof. P.A.K. le Roux, Negligence – The Grounds for Disciplinary ActionContemporary Labour Law Vol. 5 No. 1 August 1995 at 1 to 6).