Dereliction of duty is a charge that is tempting for employers to use especially when they are angry with the employee concerned. This is because:
However, employers need to be extremely careful before using this charge because it has a very specific meaning referring to a intentional or conscious failure of an employee to do his/her duty. Collins Concise dictionary defines dereliction as “conscious or willful neglect” (especially of duty). The Dictionary of English Synonyms lists, as synonyms for dereliction, “abandonment” and “desertion” which terms have a connotation of intentional failure to do one’s duty. In practice this type of misconduct occurs fairly frequently. Examples include situations where the employee:
Such problems can very often result, not from intentional or conscious decisions, but from lack of skill, faulty equipment, misunderstanding of the instruction, over zealousness or other less sinister reasons.
Regardless of how seriously the latter list of causes might be viewed they do not constitute dereliction of duty because they lack the element of intent or consciousness.
Furthermore, even where an employer truly believes that the employee’s failure to perform is intentional, the employer still has the onus of proving this contention.
The employer, enraged because he/she lost a client due to the employee’s bungle, might fire him/her for dereliction of duty.
The employer is basing the charge, not on evidence of intentional neglect, but on the infuriating and disastrous consequence of the botch up.
Thus, where employers allow emotion to enter into the equation, they often come off second best at the CCMA or bargaining council. For example, in the case of Joseph vs Standard Bank of SA (2001, 8 BALR 868) Joseph was dismissed for breaching the rule that there must be at least two officials present when money was being prepared for collection.
The CCMA commissioner found that Joseph had in fact broken this rule and was guilty of dereliction of duty. However, as the manager concerned had charged the employee out of “spite” rather than out of concern for the security of the bank, the arbitratore found that the dismissal was unfair. The employer was therefore required to pay the employee 12 months’ remuneration in compensation.
The main danger is that dereliction of duty is too often used as overkill when a charge of ordinary poor performance or negligence would do.
However, the opposite mistake is also made. This is where the employee’s poor performance is permeated with willful failure to do his/her duty with serious consequences but the employer disciplines the employee for mere poor performance and gives him/her a warning.
This gives the employee the wrong message that what he did was not serious. It also may set a precedent for other employees who might ‘get away with murder’ because the first case set too low standards on which performance is measured. The employer will have then to put up with a series of repeated cases of dereliction of duty and the damage it causes before being able to dismiss the employee.
In the light of the above dangers employers are advised to use experts in labour law to:
Written by lvan lsraelstam
Chief Executive of Labour Law Management Consulting
Tel: (011) 888-7944
This article was first published in The Star newspaper and on The South African Labour Guide website