A manager who was dismissed after asking his subordinate out on dates and sending her pornographic material, failed to have an arbitration order reviewed.

Ngunyule v MEIBC and Others (JR1595/19) [2023] ZALCJHB 17 (7 February 2023).

Case summary 

Mr. Ngunyule was employed by Denel as a Senior Manager for Business Planning. At a point, Ms. Maboya was employed in a department headed by him. According to Maboya, a junior employee, Ngunyule on multiple occasions asked her on dates which she turned down. She also claimed that he gave her looks that made her uncomfortable and he commented about her physical appearance.

On occasion, after Ngunyule had sent pornographic material to Maboya, she informed Ngunyule that she did not appreciate such material being sent to her. He then apologized and alleged that the material was meant for a friend of his. After becoming aware of these rumours, management charged Ngunyule with allegations of sexual harassment. A disciplinary hearing was held and Ngunyule was found guilty and dismissed.

Dissatisfied with the outcome, Ngunyule referred an unfair dismissal dispute to the bargaining council. Having failed to resolve the dispute through conciliation, the Metal and Engineering Industries Bargaining Council (MEIBC) appointed Commissioner Sjolund to arbitrate the dispute. Ngunyule’s dismissal was found to be fair.

Ngunyule, unhappy with the outcome, approached the Labour Court to have the decision reviewed.

In the review application Ngunyule accused Commissioner Sjolund of bias, misconduct, misunderstanding of issues, reaching unjustifiable findings, ignoring crucial evidence and that the arbitration award does not fall within the boundaries of reasonableness.

With regard to the sending of the pornographic material, Ngunyule submitted that such is not a gross form of sexual harassment and dismissal as a sanction was too harsh. “All of these alluring submissions are oblivious of the approved test on review. A proper reading of the arbitration award reveals that Sjolund pitch-perfectly dealt with all those issues. The question is not whether she was correct or not but whether the decision she reached is one that a reasonable decision maker may reach”, Judge Moshoana held.

Moshoana further pointed out that “a frail attempt was made to the effect that dismissal for sexual harassment was inappropriate. In many judgments of this Court, the Labour Appeal Court and the Constitutional Court, sexual harassment was described as an utterly odious form of misconduct at the workplace. Being so described, how can it not be serious enough to lead to a dismissal? Unlike any other forms workplace misconducts, sexual harassment also offends constitutionally guaranteed rights. The right to equality and dignity to mention but a few. An employer carries a legal obligation to protect employees from any form of harassment. An argument that it took Denel months to act after the incident is sadly a limping one too. The alleged political conspiracy remains unhelpful to the course of Ngunyule.”

The arbitration award was found to be justifiable, unassailable and one that a reasonable decision maker may reach. The review application was dismissed. 

Submitted by Labour Guide

This article does not constitute legal advice and is based on the authors interpretation of legislation and relevant case law. For an informed opinion and/or assistance with a labour related matter, readers are encouraged to arrange a formal consultation with the author.