Eradicating Racism in the Workplace: A Firm Stance From The Labour Court
- Jonathan Goldberg
- 14 hours ago
- 2 min read
In MPUNGOSE V NEDBANK [2024] JR1776-20 ZALCJHB (19 FEBRUARY 2024) an employee, serving as Executive Head of Human Resources—Group Risk at Nedbank since May 2005, sought to review and set aside an arbitration award issued by a CCMA Commissioner under section 145 of the Labour Relations Act (LRA). The Commissioner had found that the employee's dismissal in May 2019 was substantively fair.
The employee faced several allegations of gross misconduct, including harassment, victimisation, bullying, racial stereotyping, unfair discrimination, failure to comply with Nedbank policies, and dishonesty. Specifically, the charges included making disrespectful, offensive, and humiliating remarks towards subordinates, failing to report or act on suspected dishonesty, and securing financial benefits for a third party under false pretences, all of which violated Nedbank's internal policies.
During the disciplinary hearing, one charge was withdrawn, but the employee was found guilty of the remaining charges, leading to her dismissal on 19 May 2019. The arbitration proceedings upheld this dismissal, with the Commissioner finding the employee guilty on four charges. The Commissioner concluded that the dismissal was substantively fair, considering the severity of the misconduct and the consistency of the evidence provided by three witnesses.
The employee challenged this decision in the Labour Court (LC), arguing that the Arbitrator had committed several reviewable irregularities. These included a failure to properly evaluate the evidence, assess witness credibility, and consider the relevance of the evidence presented. The employee contended that no reasonable decision-maker could have reached the conclusion that the Arbitrator did, given the alleged irregularities.
Under section 145 of the LRA, an arbitration award can be reviewed for misconduct, gross irregularities, exceeding powers, or improper award acquisition. The standard for review requires that the decision in question be one that no reasonable decision-maker could have made based on the evidence presented. The LC's role in such a review is not to substitute its own opinion for that of the Arbitrator but to ensure that the decision was reasonable and based on the totality of the evidence.
The LC found that the Commissioner had carefully considered the gravity of the charges against the employee and had assessed the evidence in its entirety rather than in a piecemeal fashion, as claimed by the employee. The Commissioner acknowledged minor discrepancies but ultimately found the employer's version of events to be consistent and credible. The employee had been afforded a fair hearing, with ample opportunity for cross-examination.
The LC determined that the Arbitrator's decision was reasonable and justified, particularly given the seriousness of the employee's misconduct, which included dishonesty and racial remarks. These actions were found to undermine the trust necessary in the employment relationship and to contravene workplace discrimination policies.
As a result, the LC dismissed the employee's review application, finding no irregularities in the arbitration process. No costs were ordered.
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