Labour Court refuses to reinstate unfairly dismissed SHE manager in the wake of workplace safety incidents

Reinstatement is the primary remedy for a substantively unfair dismissal. However, there are exceptions where reinstatement will not be appropriate, including where the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable.

2026/01

Grace Crocker, Associate and Chloë Loubser, Knowledge and Learning Lawyer at Bowmans

The Labour Court case of Sulzer Pumps (Pty) Ltd v Nomxhanya provides a good example of when such intolerability may arise and illustrates the importance of maintaining workplace safety.

The case also serves as a reminder to employers of the concept of corrective or progressive discipline.

Background facts

In February 2019, Ms Nomxhanya (Nomxhanya) was dismissed from her position as a safety, health and environment (SHE) manager at Sulzer Pumps, a Swiss multinational company that manufactures pumps and rotating machinery (Sulzer).

Nomxhanya had been charged with gross dereliction of her duties as a SHE manager, in that she failed to:

• conduct adequate risk assessments (especially concerning the static test bay and pump testing facilities)’
• put certain corrective and preventative action procedures in place; and
• manage and control her KPIs as a SHE manager, in line with Sulzer standards, as evidenced by the number of lost-time injuries (LTIs) in 2018.

‘LTI’ refers to a work-related injury that requires the employee to take time off work. During 2018, there had been six LTIs over a period of eight months, three of which resulted in serious trauma to the victims. One of the incidents involved an apprentice working on a lathe.

Nomxhanya referred an unfair dismissal dispute to the Metal and Engineering Industries Bargaining Council (MEIBC) and was awarded reinstatement. The arbitrator found that her dismissal was substantively unfair, but procedurally fair. In particular, he found that Sulzer had failed to establish, among other things, that Nomxhanya had consciously or intentionally neglected her duties; and that there was a causal link between Nomxhanya’s alleged negligence and the LTIs.

Unhappy with the outcome at the MEIBC, Sulzer took the matter on review. It argued, among others, that the arbitrator had misconstrued the nature of the enquiry, resulting in a conclusion that no reasonable arbitrator could have reached.

Misdirected enquiry

The Labour Court held that the arbitrator’s finding that Nomxhanya was not guilty of any misconduct was reviewable and stood to be set aside. In particular, the Labour Court agreed that the arbitrator failed to consider the specific allegation against Nomxhanya that her risk assessments of the two testing areas were inadequate (not that she had failed to conduct them at all), and the broader allegation that she failed to manage and control her KPIs overall.

The Labour Court also disagreed with the arbitrator’s approach that Sulzer had to show a causal link between Nomxhanya’s failure to conduct risk assessments and put preventative measures in place, on the one hand, and the LTI injuries, on the other.

The Labour Court held that this was irreconcilable with the arbitrator’s own acknowledgement that Sulzer’s real issue was that Nomxhanya was not getting to the root cause of the injuries to prevent their recurrence, not that her conduct had caused the incidents. These missteps resulted in the arbitrator misdirecting his enquiry to a significant extent.

Ultimately, the Court found that the risk assessments had been seriously deficient and that no reasonable arbitrator could have held that Nomxhanya was not remiss in her management of the proper identification of risk and implementation of adequate preventative measures relating to test areas.

Further, the investigation of the lathe incident did not go deep enough in identifying the causes of the LTI and no reasonable arbitrator could have found the investigation to be adequate. The arbitrator should therefore have found Nomxhanya guilty of the misconduct.

Dismissal the inappropriate sanction

The next question was whether dismissal was the appropriate sanction. In this regard, the Labour Court held that Sulzer was entitled to address the deficiencies in Nomxhanya’s performance and, in fact, it would have been negligent of it not to do so, given the safety and liability ramifications of her conduct.

However, it was not clear to the Court why Nomxhanya’s shortcomings were not identified and addressed by Sulzer earlier. Nomxhanya was never asked to account for her shortcomings prior to 2019, despite Sulzer allegedly having identified some of these shortcomings as early as 2016.

In fact, the only performance appraisal in evidence was from 2016 and was positive. There was no evidence to show that there had been a single engagement with Nomxhanya about the failings in her performance prior to the disciplinary proceedings in 2019. Sulzer only took action against Nomxhanya after it initiated an investigation into the six LTIs in 2018.

The Court held that, at the very least, there should have been engagements between Nomxhanya and management about why they believed she was failing to fulfil vital obligations and to put her on clear terms outlining how she could rectify matters. In the circumstances, the Court found that dismissing Nomxhanya without taking any prior corrective or disciplinary action was substantively unfair.

Reinstatement inappropriate relief

In respect of the relief to be granted, the Labour Court noted that when considering reinstatement, an employee’s behaviour, whether before or after dismissal, can be taken into account in determining whether a continued employment relationship would be intolerable.

Given that in the time since Nomxhanya had been dismissed there had been no LTIs for a period of 13 months, compared to the six LTIs that occurred in 2018 under Nomxhanya’s watch, the Labour Court found that those incidents were indicative of a poor workplace safety regime and Nomxhanya’s overall ability to manage safety could not be trusted. There was a very real risk that Nomxhanya’s reinstatement might reverse the dramatic improvement made in workplace safety. Therefore, the Labour Court held that one could not reasonably expect Sulzer to restore the employment relationship.

Instead of reinstatement, the Labour Court ordered the company to pay Nomxhanya eight months’ remuneration as compensation.

Article published with the kind courtesy of Bowmans, for more information please visit – www.bowmans.co.za

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

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