The labour court recently held that the decision of an arbitrator to uphold the dismissal of the former executive head of human resources: group risk at Nedbank, Anele Makhosazana Mpungose, for serious misconduct, including dishonesty and racial remarks, was reasonable.

This ruling reiterates the stern stance against racial workplace misconduct in South Africa. The court found her guilty of serious misconduct, including making racially charged remarks and demonstrating dishonest behaviour, justifying her dismissal as reasonable and necessary.

This case not only spotlights the grave repercussions of racial discrimination and dishonesty within the corporate sphere, but also aligns closely with South Africa’s broader sociopolitical context, which remains deeply influenced by its history of apartheid and the ongoing commitment to racial equality and integrity in professional environments.

Mpungose’s actions, which included derogatory comments towards her subordinates and breaches of corporate trust, underline a blatant disregard for the principles of equity and respect foundational to South African labour law and corporate ethics. The seriousness of her offences is magnified by her high-ranking position within the bank, where she was expected to exemplify and uphold the values she instead violated.

Leadership role

This opinion piece explores the implications of the labour court’s decision, reflecting on the importance of maintaining a workplace free from harassment and the critical role of leadership in fostering an environment of respect and dignity for all employees.

Mpungose’s dismissal followed accusations of severe misconduct, including disrespectful, offensive remarks towards subordinates, failure to follow Nedbank’s policies and a specific incident of dishonesty involving a vehicle purchase agreement.

Mpungose made several offensive remarks towards her subordinates. These remarks included describing employees as a “bunch of idiots”, as “stupid”, as “useless”, that they “cannot be trusted”, that one employee “should be a man”, that one employee “is weak and should explain what is wrong with him and why he is so weak”. These remarks were made loudly enough for others to hear her shouting at him.

Additionally, the charges against Mpungose included allegations of racial stereotyping and unfair discrimination, as she stated to other black employees that black people were “lazier and more incompetent than white people” and that “black people do not deliver”.

She criticised the performance leadership of Nedbank’s black executives during an offsite engagement with her subordinates and told another subordinate that “you cannot let this white boy beat you”, referring to a white male colleague.

Racial slurs and dishonesty

Aggrieved by her dismissal, Mpungose referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA upheld the dismissal, citing the seriousness of the accusations, especially the racial slurs and dishonesty, which were deemed fundamentally detrimental to the trust necessary in the employment relationship.

Mpungose further approached the labour court to review the decision of the CCMA, claiming that the arbitration suffered from reviewable irregularities, arguing that the evidence should lead to the conclusion that she did not commit the alleged misconduct.

The labour court held no reviewable irregularities in the arbitrator’s handling of evidence or procedural conduct. The arbitrator’s decision to uphold Mpungose’s dismissal was found to be reasonable and within the range of decisions a reasonable arbitrator could make based on the evidence. The arbitrator appropriately assessed the credibility of witnesses and the inherent probabilities of their versions, preferring the consistent and credible testimony of the employer’s witnesses over the employee’s version.

The court further held that Mpungose was afforded a fair hearing, with ample opportunity to challenge the evidence against her and present her case, contradicting her claims of an unfair process. Mpungose’s misconduct was grave, particularly in considering the impact of dishonesty and racial slurs on the employment relationship, which justified the dismissal.

Racial conduct in the workplace should be stamped out as it destroys the employment relationship. In South Africa, racial harassment is considered to be a form of unfair discrimination. The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace in South Africa serves as a pivotal guideline for managing and mitigating harassment, including racial harassment, in the workplace. When assessing the findings of the court and the conduct of the employee against the principles outlined in this code, several key points emerge:

• The court’s decision to uphold the dismissal based on the seriousness of the misconduct aligns with the code’s emphasis on maintaining a workplace free from harassment, demonstrating the necessity of taking decisive action against those who violate this principle;
• The court’s acknowledgement of the gravity of dishonesty and racial slurs and their impact on the employment relationship highlights the significance of respecting the dignity and worth of every employee, supporting the code’s objectives;
• By upholding the dismissal for serious misconduct, the court indirectly supports the principle that preventive measures, including the appropriate disciplining of those who engage in harassment, are crucial to stopping harassment before it starts;
• The court’s decision underlines the responsibility of employers (and, by extension, their representatives) to act decisively against harassment, consistent with the code’s guidance that employers must take steps to prevent and address harassment in the workplace; and
• The court’s findings and the ultimate dismissal remind everyone, especially those in leadership positions, that there is a responsibility to uphold standards of conduct that prevent harassment.

South African context

The case is particularly significant within the South African context due to its focus on issues of racial discrimination and dishonesty in the workplace. This significance is underscored by South Africa’s historical and social backdrop, marked by apartheid and ongoing struggles against racial inequality and social injustice.

The labour court’s decision reflects the country’s stringent legal and ethical standards concerning workplace behaviour, especially regarding race and trust.

Mpungose’s conduct involved racial stereotyping and derogatory remarks towards other black employees, which is particularly egregious given South Africa’s history of racial segregation and discrimination. Such behaviour contradicts the nation’s commitment to equality and non-discrimination, principles enshrined in the South African Constitution and various labour legislation such as the Employment Equity Act.

The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace addresses explicitly such issues, highlighting the necessity for a workplace free from harassment, including racial harassment.

The seriousness of the misconduct, including both dishonesty and racial remarks, fundamentally damaged the trust necessary in an employment relationship. Trust is a core component of employment, and its breach, mainly through dishonesty and discriminatory remarks, can justify dismissal.

Trust and respect

The labour court’s decision to uphold the dismissal indicates a reinforcement of the principle that an employment relationship is fundamentally built on trust and respect, values that are crucial in a diverse society like South Africa. It is submitted that no employment relationship can, or should, survive employee racial misconduct.

Mpungose’s conduct was particularly unbecoming, given her senior position as the executive head of human resources: group risk at Nedbank. In her role, Mpungose was not just a manager, but a leader who was expected to set the tone for corporate culture and ethical standards within the employer’s organisation.

Leaders in such high positions are seen as role models and are expected to demonstrate exemplary behaviour that aligns with the employer’s values and policies. Her actions directly contradicted the standards she was supposed to uphold.

Senior executives significantly influence an organisation’s culture. Disrespectful and discriminatory behaviour from someone at Mpungose’s level can have a cascading effect, potentially normalising such misconduct among other employees. It undermines efforts to create a respectful, inclusive and professional workplace environment where the values under our Constitution can prevail.

Mpungose’s dismissal is not only a vindication of Nedbank’s commitment to maintaining a professional and respectful work environment but also reflects the broader societal and legal mandates in South Africa that demand fairness, equality and respect for all within the workplace.

The decision reinforces the message that racial discrimination has no place in any setting, particularly within a nation still healing from the scars of apartheid. DM