Nedbank Dismissal of employee over “sit on my lap” sexual harassment remarks

The Johannesburg Labour Court has overturned an arbitration award that found a former Nedbank employee’s dismissal for sexual harassment to be unfair. The court ruled that the bank was justified in terminating the manager’s employment. It then set aside an arbitration award that had ordered Nedbank to pay former Manager of Field Agents, Marius Olwage (“Olwage”), more than R400,000 in back pay.

The case came about following allegations that Olwage sexually harassed a female colleague (“Ms W”), who worked in Nedbank’s Specialised Recoveries Department. The incidents allegedly occurred between September 2020 and April 2021. According to court documents, Olwage was charged with two counts of gross misconduct. The first involved making sexually inappropriate and unwelcome comments toward Ms W between September 2020 and April 2021. The comments continued even after she requested he stop. The second charge related to harassment in April 2021, when Olwage allegedly deliberately created loud noises by forcefully shutting a metal recycling bin while he knew it would frighten Ms W and affect her wellbeing.

The most serious incident occurred in January 2021 during COVID-19 temperature screening procedures. Ms W testified that when she approached Olwage to take his temperature, he said: “Canny why do you not sit in my lap.” She reported feeling upset and offended but initially walked away to avoid workplace conflict. Two days later, Ms W confronted Olwage in front of witnesses. During this confrontation, she told him his behaviour was inappropriate, unwanted, and made her uncomfortable. She proceeded to demand that he stop immediately.

Following a disciplinary hearing in September and November 2021, Nedbank found Olwage guilty on both charges and dismissed him summarily. The South African Society of Bank Officials referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) on Olwage’s behalf.

Commissioner Johnny Mathebula, who presided over the arbitration in June 2022, found the dismissal substantively unfair. The arbitrator questioned Ms W’s credibility and suggested she was “abusing the allegations of sexual harassment to get even” and had “a general dislike of men, referring to them as pigs or dogs.” The arbitrator placed significant weight on witness testimony which suggested Olwage complimented everyone and that Ms W sometimes appreciated his comments. He thus concluded no sexual harassment had occurred.

Judge Navsa delivered a comprehensive rebuke of the arbitrator’s decision and found multiple gross irregularities and errors of law. The court concluded that the arbitrator failed to properly consider the Code of Good Practice on Sexual Harassment and imposed his own self-created standard to assess Olwage’s conduct.

The court was of the opinion that the arbitrator seemingly ignored the point of view of Ms W, as the victim concerning the alleged sexual harassment, how Ms W perceived it, and whether or not that perception was reasonable. The court thus found the arbitrator’s credibility findings against Ms W were unsupported by the transcript and noted her testimony remained consistent and appeared open and forthright. The court could find nothing material in the transcript that detracted from the credibility of her evidence.

The judgment emphasises crucial principles in sexual harassment cases. As the court noted, asking someone to sit on one’s lap constitutes unwanted conduct that had clear sexual overtures. That Ms W walked away must be viewed as non-verbal conduct clearly indicating Olwage’s behaviour was unwanted. Sexual harassment must be viewed from the victim’s perspective and CCMA arbitrators, or any other presiding officers, must treat such cases with special sensitivity while avoiding gender bias. It was also poor form for the arbitrator to question why Ms W did not report the incidents immediately. As the court highlighted, it is common for recipients of harassment to process what has occurred and act on the conduct in question at a later stage.

In a commendable move, rather than remitting the matter for fresh arbitration, Judge Navsa substituted the original award with a finding that Olwage’s dismissal was substantively fair.

You can read the full Nedbank Limited v Olwage judgement here.

Written by Theo Tembo