In a labour law case that sounds like it came straight outta the ‘80s, a human resources manager at Nedbank was dismissed in 2019 for “gross misconduct” which included racial slurs.

Anele Mpungose lost her case at the Commission for Conciliation, Mediation and Arbitration (CCMA) when Commissioner Michael Boyce upheld her dismissal.

At a disciplinary hearing before her dismissal, Mpungose was found guilty of having resorted to racial stereotyping and/or unfairly discriminating against people on racial grounds by:

• saying black people are lazier and more incompetent than white people;
• saying black people do not deliver;
• criticising the performance and/or leadership of the employer’s black executives;
• telling a colleague that they could not “let this white boy” beat them; and
• referring to two black colleagues as “a bunch of idiots” while in conversation with them.

At the time (2019) she was charged with harassment, bullying and victimisation as it was alleged that she made several remarks that were offensive, humiliating and derogatory such as referring to employees as stupid and useless. It was even alleged that she informed one of the employees that he “should be a man” and stop being weak. Dumisani Ndiweni, partner at Webber Wentzel observed the irony in that Mpungose was the executive head of human resources for Nedbank when she made the disparaging comments.

However, Mpungose’s behaviour was not limited to discrimination and verbal bullying. The bank also found her guilty of fraud when she arranged to purchase a BMW X6 using her Nedbank fringe tax benefits, and entered a written agreement to have a third party responsible for all the repayments. The finance agreement for the car was for an amount of R886,139.99 financed at an annual rate of 6.5% over 72 months, at a time when the prime lending rate was 9%. “The effect was to secure a financial benefit for the third party to the prejudice of Nedbank.”

The CCMA found that she was guilty and her dismissal was fair. Mpungose then asked the Labour Court to review the CCMA’s decision.  Five years after her dismissal, the Labour Court ruled in February this year that her dismissal was substantively fair.

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In arriving at its decision, the Labour Court considered the racial remarks and slurs and stated that “racial conduct in the workplace should be stamped out as it destroys the employment relationship”. In making this point, the Labour Court referred to the Constitutional Court judgment of SARS v CCMA, where an employee used derogatory racial language towards their colleague. In that case, the Constitutional Court stated that:

“Where such injurious disregard for human dignity and racial hatred is spewed by an employee against his colleagues in a workplace, that ordinarily renders the relationship between the employee and the employer intolerable”.

The breakdown of an employment relationship is inevitable where the workplace culture instilled by an employer does not tolerate racism or any other type of disrespect based on the protected grounds of discrimination. In such circumstances, this type of conduct will erode the trust between the employer and employee and may warrant dismissal.

Boyce also noted in the Labour Court ruling that when an employee is found guilty of misconduct in relation to dishonesty, (there is) a serious impact on the employment relationship. “Dishonesty invariable justifies dismissal as a premium placed on honesty. This is so because the moral turpitude of dishonesty is considered to damage or destroy the trust relationship on which the contract of employment is founded. It is not necessary for the employer to prove actual prejudice, potential prejudice is sufficient,” he said.

Ndiweni says while it is important for employers to address individual instances of racially motivated misconduct or any type of harassment, reacting to such occurrences alone is not enough. “Employers also have a duty and responsibility to prevent these issues by creating a workplace culture free from any form of racial misconduct, bullying, harassment and victimisation,” he says.

A Nedbank spokesperson says Mpungose has subsequently filed for leave to appeal the judgment of the Labour Court granted in Nedbank’s favour. Nedbank is opposing the application for leave to appeal. “Nedbank has a zero-tolerance approach to any form of discrimination, discriminatory remarks or conduct, and we expect all our employees to refrain from such conduct as it undermines dignity, breaks down trust, and creates a hostile or intimidating environment,” the bank said. DM