Yesterday I heard a politician answering a media question as to whether a certain minister would be disciplined for failing to do her job – a failure that placed South Africa at serious risk. The reply was words to the effect of “We take action where we find the person acted deliberately.” By implication, no action is taken if a person “made a mistake”.

However, her intentions are of little comfort to people whose livelihoods may have been affected by her failure to perform her duties properly.

One cannot help but think of the ongoing Life Esidimeni matter. Inconceivably, despite warnings, the Gauteng Health Department apparently “negligently” left 144 patients to die in horrific ways, including starvation. Their negligence, or incompetence, cannot absolve them of responsibility and it now lies to our courts to determine criminal liability. In the meantime, intentionally or not, people are dead.

The corporate world is less forgiving of the breach of rules and this seeks to create a climate of accountability that is required for any organisation to run efficiently.

Employees are expected to know what is expected of them and to act reasonably. They have a common law duty to be competent - to perform with diligence and to properly exercise the skill and care that they were employed for. When undertaking to exercise that skill, an employee must do so with due diligence, and if not, that employee could be considered incompetent and will have to take responsibility for his or her actions.

This raises the common question of whether an employee can be disciplined if he or she makes a mistake. To establish negligence, one must consider if the reasonable person would foresee the reasonable possibility of his/her conduct – an act or omission - causing patrimonial loss and would take reasonable steps to guard against such occurrence but failed to take such steps.
 
Negligence constitutes misconduct – the breach of a valid and reasonable rule or standard. I have heard many employees sitting in the hot seat of a disciplinary hearing, using the absence of intent as an excuse for their misconduct.
 
The absence of intent does not release a responsible person of his or her duty to perform. If it did, our honourable health officials referred to above, could get away with a dismissive, “I did not intend to cause the death of 144 people.”
 
At the risk of over-simplification, employers would be wise to recruit responsible people who are competent to perform and then to clearly and regularly communicate and enforce rules, responsibilities and standards (including ethical standards).