On 12 September 2025, the Labour Court handed down judgment in Nedbank Limited vs Olwage and Others. The court set aside an arbitration award that had found the dismissal of a former employee substantively unfair.
The judgment provides critical guidance on how decision-makers should assess harassment allegations. It also clarifies the role of arbitrators. Importantly, it reinforces the need for a victim-centred lens. In doing so, the case revisits the boundaries of sexual harassment in the workplace.
Background
Mr Olwage (Olwage), a manager in Nedbank’s Recoveries division, was dismissed following allegations of sexual harassment and harassment by a colleague, Ms W. The allegations related to repeated and unwelcome comments about her hair, clothing and appearance. These included remarks such as “you are so beautiful”, “you are so stunning”, “black looks good on you” and “Canny, why do you not sit in my lap”.
Ms W asked Olwage to stop making these comments. Despite this, he continued. At one point, he said, “I don’t want to tell you, you look stunning. Just now, I am going to get in trouble with you”. This continued conduct is central to revisiting the boundaries of sexual harassment cases, particularly where persistence follows an objection.
It was further alleged that Olwage deliberately created loud noises by slamming a metal bin on two occasions. He knew the noise would frighten Ms W and affect her wellbeing.
Following a disciplinary hearing, Olwage was summarily dismissed. However, the CCMA arbitrator found the dismissal substantively unfair. The arbitrator awarded Olwage ZAR 400,424.39 in backpay.
The findings of the arbitrator
The arbitrator concluded that the comments made by Olwage were “innocuous”. He found that they did not amount to sexual harassment. He also rejected the harassment allegation arising from the bin-slamming incidents.
The arbitrator’s core findings were based on the following:
- He relied on the testimony of Olwage’s witnesses. They stated that he complimented colleagues of all genders. The arbitrator therefore concluded that the comments were not intended to harass Ms W.
- He interpreted Ms W’s decision to walk away after the “sit on my lap” comment as inconclusive. He did not regard it as a clear indication of discomfort or harassment.
- He treated Ms W’s delayed reporting of the incidents as a factor that undermined her credibility.
- He concluded that Ms W may have fabricated the allegations to “get even”. He suggested that she had a personal vendetta and a general dislike of men.
Nedbank took the arbitration award on review. It argued that the arbitrator committed gross irregularities and material legal errors. In particular, Nedbank contended that the arbitrator misapplied the legal test for sexual harassment. The arbitrator focused on Olwage’s intent instead of the impact of his conduct on Ms W.
Nedbank further argued that the arbitrator failed to apply the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code). It submitted that the arbitrator ignored the victim’s perspective. In addition, it argued that the arbitrator placed undue weight on Ms W’s alleged motives. Nedbank also contended that the credibility findings lacked support in the record.
The findings of the Labour Court
Applying the test for reviews, the Labour Court found that the arbitrator reached a decision that no reasonable decision-maker could reach.
The court’s key findings included the following:
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Failure to apply the Code
The arbitrator did not apply the Code once it became clear that the matter involved sexual harassment. Had he done so, he would have recognised that Ms W’s act of walking away after the lap comment was a clear non-verbal indication of unwelcome conduct. The Code expressly recognises such conduct.
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Misinterpretation of the legal test for harassment
The arbitrator focused on whether Olwage pursued a sexual relationship. This approach was incorrect. The correct inquiry was whether the conduct was unwelcome, sexual in nature, and had a negative impact on Ms W.
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Credibility findings not supported by the evidence
The arbitrator’s conclusion that Ms W disliked men and fabricated the allegations found no support in the transcript. Her testimony remained consistent throughout. On a balance of probabilities, her evidence should have been preferred.
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Neglecting Ms W’s perspective
The arbitrator failed to assess how Ms W perceived the conduct and whether her perception was reasonable. The Court relied on Motsamai vs Everite Building Products [2011] 2 BLLR 144 (LAC). In that case, the Labour Appeal Court held that sexual harassment must be viewed from the victim’s point of view.
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Harassment allegation
The arbitrator conflated the sexual harassment charge with the general harassment charge. Olwage’s deliberate bin-slamming constituted harassment. This was especially so in the context of his prior conduct.
These findings significantly advance revisiting the boundaries of sexual harassment cases, particularly in relation to intent, perception and evidentiary assessment.
Conclusion and key takeaways
The Labour Court concluded that the arbitrator’s findings were disconnected from the evidence and involved speculation. As a result, the arbitration award was reviewed and set aside, and the dismissal of Mr Olwage was found to be substantively fair.
For employers and decision-makers, this case reinforces that allegations of sexual harassment must be approached through the lens of the complainant, with careful attention to how the conduct was experienced and whether that perception was reasonable.
The Code provides clear and comprehensive guidelines for dealing with such allegations, and these must be applied by arbitrators consistently and objectively (not selectively or subjectively).
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| Sibusiso Dube | Partner | mail me | | Soraia Machado | Associate | mail me | |
| | Bowmans | | |
