HWANGE COLLIERY COMPANY LIMITED V BENSON NDLOVU AND ANDREW NDLOVU (SC46/20)

“What all the authorities point to is that the discretion of the employer must be respected. It is not just a question of the appellate court, in the comfort of its chambers or courtroom, deciding to substitute its own discretion merely because it holds a different view from that of the lower court.”

Categories: Strike Action, Discretion to dismiss

Introduction

What happens when an employee admits to committing an offence during a disciplinary hearing? What are the legal implications of such an admission? Hwange Colliery Company Limited v Benson Ndlovu and Andrew Ndlovu answers these questions, among others.

Facts

Between the 14th and the 18th of October 2013, there was an illegal strike at perpetrated against the appellant company. 3200 men and women were involved in this action. The two respondents were charged for engaging in the illegal action and were dismissed by the respondent company. It is important to note that the employees pleaded guilty to the charges laid against them. Internal appeals also failed as they were held to have admitted to the charges. They appealed to the labour court which upheld their appeals setting aside the penalty of dismissal. The LC ruling founded the current SC challenge.

The Courts Reasoning

Singling out the respondents

The labour court had a problem with the fact that the respondents were singled out, out of a group of employees that was involved in an illegal strike. It was also of the view that not enough evidence had been provided to convict the respondent employees. The SC did not agree. It contended that there was a rich line of precedent from it which point to the fact that it is “not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled out for punishment.” It concluded that it accepted that selective prosecution is acceptable in as far as illegal strikes are concerned.

Discretion to dismiss the respondent

The SC argued that a court must be slow in interfering with the employer’s discretion to dismiss an employee where the employee’s conduct goes to the root of the employment relationship. In buttressing its position, the court remarked as follows:

What all the authorities point to is that the discretion of the employer must be respected. It is not just a question of the appellate court, in the comfort of its chambers or courtroom, deciding to substitute its own discretion merely because it holds a different view from that of the lower court.”

Indeed, a court will not willingly interfere with an employer’s discretion to dismiss an employee.

Admitted charges

The LC was of the view that the appellate company was supposed to lead evidence to explain what the respondents did to warrant dismissal. The SC did not find this as necessary since the employees had admitted that they were guilty to the charges raised by the company. The net effect of an admitted act is that there is no need to adduce any evidence.

The SC came to this conclusion after correctly noting the case between DD Transport (Pvt) Ltd v Abbot were the court argued that:

“But this admission in the plea is of the greatest importance, for it is what Wigmore (paragraphs 2588-2590) calls a ‘judicial admission’ (of the confession judicialis of Voet (42.2.6) which is conclusive, rendering it unnecessary for the other party to adduce evidence to prove the admitted fact, and incompetent for the party making it to adduce evidence to contradict it —“.

In effect, there is no need for an employer to adduce any evidence when an employee admits to committing the offence in question.

The appeal was upheld, and the dismissal of the employees was consequently upheld.

Own Comment

The bottom line in terms of the principles confirmed, in this case, is that the employer retains the right to dismiss an employer where the act complained of goes to the route of the employment relationship. Courts will be slow to interfere with the exercise of such discretion. This case also confirms what is common knowledge in Zimbabwean labour law. A few employees may be singled out for disciplinary action concerning an illegal collective job action. This judgement was well reasoned and serves as a good reminder of the basic principles of the law on collective job action.

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