Dismissal: Gross Negligence and Consistency?

In the case of South African National Blood Service v NEHAWU obo Mathobisa and Others (JR 654/2021) [2023] ZALCJHB 58 the employee was employed as an inventory technician. She was dismissed on 11 August 2020 after a disciplinary hearing, when she was found to have committed an act of gross negligence.

The employee stacked a lab crate in an area designated for other purposes, which caused the fridge to switch off resulting in losses suffered by the employer.

The arbitrator found that the dismissal was substantively unfair because while the employee had caused the switch to trip and the fridge to lose temperature, the employer should have treated the employee the same as her colleagues. These people were notified by SMS that the temperature of the fridge was out of range and neglected to address the situation. These colleagues were given a final written warning.

The arbitrator considered the employee’s dismissal to be unfair because:

1. The employer’s disciplinary code and procedure provided a penalty of a final written warning for an act of gross negligence;

2. The dismissal was inconsistent with the lesser sanction of final written warning issued to other employees for the same or similar conduct;

3. The evidence indicated that the employee had turned remorseful to the extent that the employer relied on a failure to show remorse as a basis to depart from the guideline offered by the disciplinary case and as a differentiating factor between the employee and her comparators.

The matter was referred to the Labour Court (LC). The Court found that clause 2 of the disciplinary code as well as clause 8.8, stating that the penalties referred to are ‘intended to serve as guidelines to management in implementing discipline’. There was no basis therefore for the arbitrator to conclude that the penalty of a final written warning was a mandatory or the only appropriate penalty in circumstances where the employee had been found guilty of gross misconduct.

The charges brought against the employee were different from those brought against the employees she named as comparators. The employee had been charged with gross negligence, whereas her named comparators had been charged with dereliction of duty.

For these reasons, there was no inconsistency on the part of the employer. The employee’s misconduct was serious and had grave financial and other consequences for the employer.

The LC found the employee’s dismissal to be substantively fair and her referral was dismissed.

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