Makuleni v Standard Bank of South Africa Ltd and Others (JA125-2021) [2023] ZALAC 4

A hostile work environment is defined in the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, 2022 (“CODE”) as a work environment where conduct related to a prohibited ground impacts the dignity of one or more employees and has a negative impact on an employee’s ability to work and/or on their personal well-being. The CODE takes this definition a step further and emphasises that a hostile work environment may be the result of the conduct of persons in authority such as managers and supervisors or the conduct of other employees. In the Labour Appeal Court (“LAC”) case of Makuleni v Standard Bank of South Africa Ltd and Others (JA125-2021) [2023] ZALAC 4, the LAC was intrusted to adjudicate this very issue in an appeal by a manager who was dismissed for, inter alia, creating a hostile work environment for her subordinates. 

Makuleni v Standard Bank of South Africa Ltd and Others (JA125-2021) [2023] ZALAC 4

The Appellant in the aforementioned case, Mrs. Makuleni worked as a branch manager for the Respondent and had approximately twenty-three (23) years of service. Prior to her dismissal, she was assigned to manage a neglected and ill-disciplined branch in need of rehabilitation. Under her subsequent leadership, the branch was recognised as the third best-performing branch in the Respondent’s business. However, her subordinates alleged, inter alia, that she communicated with them in a disrespectful, offensive and childish manner and belittled and degraded employees in front of colleagues and sometimes customers. Following a disciplinary enquiry into her alleged conduct, the Respondent found the Appellant guilty of the above and she was dismissed. The Appellant however, challenged her dismissal at the Commission for Conciliation, Mediation and Arbitration (“CCMA”), where the commissioner upon duly applying his mind to the facts and merits of the case, found that the Appellant was unfairly dismissed. The commissioner thus ordered her full retrospective reinstatement. Dissatisfied with the outcome of the award, the Respondent, reviewed the commissioner’s decision in the Labour Court (“LC”), which conversely found that the Appellant’s conduct amounted to workplace bullying and ordered that the commissioner’s award be set aside as the dismissal was substantively and procedurally fair. This is what led to the Appellant’s appeal in the LAC. 

In the LAC, the presiding officer emphasised some of the errors made by the LC in reviewing the commissioner’s award and held that the LC’s preference or different perspective does not displace that of the commissioner unless the award falls foul of the threshold of the review test. The LAC ultimately found that dismissal was not an appropriate sanction for the Appellant’s management style, taking into consideration the Appellant’s twenty-three (23) years of unblemished service to the Respondent; and the fact that the Appellant was appointed with the purpose of rectifying the problems at the branch. Accordingly, an appropriate sanction would have been to send her for advanced management training and, if her interpersonal management style was unreformable, the prospects of moving her into a post where she would not oversee staff, ought to have been explored by the Respondent. The LAC thus confirmed the award by the commissioner and ordered that the Appellant be reinstated with retrospective effect as per the award. 


In the aforementioned case, the LAC held a contrasting view to that of the LC in assessing when bullying and/or the creation of a hostile work environment may lead to an employee’s dismissal. In the LC, much consideration was given to the personal and emotional effects of the Appellant’s conduct on her subordinates. One could say a more subjective approach was adopted by the LC in this regard, whereas the LAC, took a more objective stance. The LAC assessed why the strict managerial approach was adopted by the Appellant, more so than the effect of same on her subordinates. The LAC was of the view that although the Respondent took a dim view of the Appellant’s managerial style, it ultimately achieved the results it wanted in terms of the branch’s performance. 

Employers are therefore encouraged to first explore alternatives to dismissal, particularly in cases where an employee’s managerial style or interpersonal skills are not wholly aligned with that of the business. Effective communication and dispute resolution techniques such as mediation, along with efficient grievance procedures are great ways of circumventing the creation of a hostile work environment. In some cases, progressive discipline, which may consist of employee training, counselling, leadership development and the like, may be a more suitable route than commencing with disciplinary procedures for misaligned employees. 

Andrea Miguel – Candidate Attorney