BANK MANAGER ACCUSED OF PROMOTING SEXUAL HARASSMENT, FACES DC

MBABANE – A Standard Bank manager has been hauled to a disciplinary hearing because she allegedly promoted and supported sexual harassment.

The Manager Voice Branch, Xolile Ngwenya, is alleged to have committed the offences between April 2022 and January 2023. She is alleged to have intentionally failed and/or neglected to exercise her duty as the team leader of the Voice Branch and purportedly breached the bank’s values and code of ethics. This, Ngwenya is alleged to have done in that, by conduct and words, ‘you promoted and supported sexual harassment within your team’. The disciplinary enquiry dated October 3, 2023, by omission, Ngwenya allegedly failed to prevent and/or report the People and Culture claims of sexual harassment against the bank’s former employee, Vukani Dlamini, whom at the time, was employed by Standard Bank and purportedly sought sexual favours in return for promotions.

According to the disciplinary enquiry, the bank views the charge against Ngwenya very seriously. It states that she is entitled to have a representative of her choice at the hearing, who may be a fellow employee and to call witnesses that she may consider necessary. Ngwenya was also informed that in the event she failed to attend the enquiry without reasonable notice, the enquiry would proceed in her absence. The chairperson of the disciplinary hearing, Sikhumbuzo Simelane, ruled that the Swaziland Union of Financial Institutions and Allied Workers (SUFIAW) was not entitled to represent an employee in the hearing, because the latter is outside of the collective bargaining unit of the trade union.

Application

The chairperson also dismissed Ngwenya’s application for legal representation. According to the chairperson, Ngwenya could still, if she so desired, continue to request other employees of the bank or any other local financial institution to represent her in the hearing. Ngwenya approached the Industrial Court on urgency, seeking a review and the court to set aside Simelane’s ruling and that she be allowed legal representation in the disciplinary hearing. In the application in court, Ngwenya submitted that the allegations against her predominantly emanated from the year 2018, at the time when she had not been promoted to her current position. She said on October 16 and 18, 2023, she attended the disciplinary hearing in the company of SUFIAW Secretary General Jabu Shiba, who submitted and she (Ngwenya) applied to be represented by her at the disciplinary hearing.

Shiba is a union official and not an attorney, as such she had faith in her regarding representation at the disciplinary hearing. However, the chairperson of the hearing, pursuant to hearing their submissions when she applied to be represented by Shiba, dismissed the application to be represented by a union official. The chairperson also directed that Ngwenya should source representation from financial institutions in the country, an order she viewed as not being reasonable or well-reasoned. Ngwenya submitted that on October 26, 2023, pursuant to being ordered to look for representatives in other banking institutions in the kingdom, she returned to the hearing which had been scheduled to proceed at 2pm on the same date. She said she submitted the difficultly she faced in other banking sectors in detail, mainly the employees whom she approached complained that their primary allegiance was in rendering services for their employers.

“Hence it is rather impossible to be away from work during working hours just so to represent an employee working for a competing banking institution when they themselves have duties to discharge and targets set for them to attain daily and monthly,” said Ngwenya. The disciplinary hearing was postponed to November 7, 2023, whereupon again, she applied for external representation, in particular by a lawyer, whose primary work was mainly to represent clients. Further, she submitted that her charges were of a serious nature, ‘embarrassing, confusing, complex and legalistic’. She pointed out that sexual harassment was a crime and as such she was advised it had certain legal elements which personally she did not know and could never comprehend in haste.

Dismissing

Ngwenya argued that Simelane’s ruling dismissing her application for legal representation, and that she could still, if she so desired, request other employees of the bank or of any other local financial institution to represent her in the hearing, necessitated that she approached the court urgently. She argued that this was more so because there was no other way in which the purported miscarriage of justice that is peculiar and or exceptional in her case could be ameliorated and averted. “The exceptional circumstances in my case is that I am being denied a reasonable right to at the very least have a representative at the hearing by a setting impossible conditions of acquiring services of a representative as pointed in the order. “These bases warranted that this honourable court intervened in the incomplete disciplinary hearing to avert the miscarriage of justice in me being denied a right to be represented through being given impossible conditions of obtaining one (seeking external representation from other banking institutions).” Ngwenya averred that prior to the issuance of the ruling, her attorney extended courtesy to the bank on her behalf. She said her attorney wrote a correspondence to the bank requesting that the issue of her representation be reasoned.

Proposition

“He made a proposition to the effect that, either a union representative represents me or I be allowed to be represented by a lawyer and the bank as well be represented by one of its in-house pool vastly experienced lawyers in its legal department or they can appoint from outside. “I should state that at first respondent’s (bank) legal department there are well experienced attorneys who have had experience in the practice of law and who appeared in all courts in the country for years prior to joining the bank in the legal department, hence there are competent individuals who can adequately represent the bank as initiators against my attorney,” argued Ngwenya. Standard Bank had filed a notice to oppose the application. However, when the matter was heard on Friday, Ngwenya was granted her prayers by consent of the parties and the matter was settled. Ngwenya was represented by Meluleki Ndlangamandla of MLK Ndlangamandla Attorneys while Derrick Jele appeared for the respondent.

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