- Nedbank has succeeded in overturning a CCMA decision that reinstated a manager found guilty of sexual harassment and intimidation.
- The Labour Court found the arbitrator had ignored key evidence and failed to apply the Code of Good Practice.
- Judge Navsa ruled the dismissal substantively fair, citing a pattern of unwelcome conduct and deliberate intimidation.
The Labour Court of South Africa set aside an arbitration award that had found the dismissal of Marius Olwage by Nedbank to be substantively unfair.
Olwage, formerly employed as Manager – Field Agents in RRB Recoveries, was dismissed following allegations of sexual harassment and harassment made by a colleague, Ms W, from the Specialised Recoveries Department.
The charges stemmed from incidents between September 2020 and April 2021, including repeated sexually inappropriate comments and deliberate acts of intimidation. Despite being found guilty at a disciplinary hearing, Olwage was reinstated by the CCMA, prompting Nedbank to seek judicial review.
Nature of the misconduct and alleged assault
Central to the dispute were two incidents, the first a sexually inappropriate comment and a physical act of intimidation. During a work-related interaction, Olwage allegedly told Ms W that she should sit on his lap. The comment was made in the presence of others and was immediately rejected by Ms W, who verbally objected and physically distanced herself. The court found this conduct to be objectively unwelcome and sexually suggestive, constituting sexual harassment under the Code of Good Practice.
The second incident, described in the judgment as a form of harassment, involved Olwage deliberately pushing a large bin toward Ms W in a confined office space. The bin struck her leg, causing her to stumble backward. The court noted that Olwage was aware of her discomfort and had previously been cautioned about his conduct. Judge ZM Navsa found that the act was not accidental but calculated to intimidate, especially given the power dynamics and prior history of unwelcome behaviour.
Ms W delayed reporting the incident, citing fear and emotional distress. The court rejected the arbitrator’s inference that the delay undermined her credibility, affirming that trauma often inhibits immediate disclosure.
Arbitrator’s contested findings
Commissioner Johnny Mathebula concluded that Ms W was not a credible witness and that Olwage’s conduct did not amount to sexual harassment. He interpreted the lap comment as a joke and dismissed the bin incident as accidental. Mathebula speculated that Ms W may have fabricated the allegations due to personal animosity and questioned her delay in reporting.
Judge Navsa found these conclusions speculative and unsupported by evidence. The arbitrator’s failure to apply the Code of Good Practice and his reliance on subjective interpretations were deemed gross irregularities.
Applying the Sidumo test, the court assessed whether the arbitrator’s decision was one that a reasonable decision-maker could reach. Judge Navsa emphasised the importance of a victim-centred approach, noting that the Code requires objective assessment of unwelcome conduct and consideration of the complainant’s dignity and safety.
The court found that the arbitrator ignored clear verbal and non-verbal objections, mischaracterised the nature of the misconduct, and failed to consider the cumulative impact of Olwage’s behaviour.
The court’s evaluation and final ruling
Judge Navsa ruled that the lap comment and the bin incident constituted sexual harassment and harassment, respectively. The dismissal was found to be substantively fair, and the arbitration award was substituted rather than remitted. The court concluded that the arbitrator’s findings were disconnected from the evidence and legally untenable.
No costs order was made.
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