SICK LEAVE & RETIREMENT ON MEDICAL GROUNDS

This article will provide a juxtaposition of the sick leave clauses in the Labour Act and the interpretations that have been fostered by courts in Zimbabwe and to a certain extent by South African Courts. It is hoped that by coming up with such a comparison the law on sick leave will be made clear […]

INTRODUCTION

Sick leave provisions in the Labour Act (Chap 28.01) are clear cut. This article will provide a juxtaposition of the sick leave clauses in the Labour Act and the interpretations that have been fostered by courts in Zimbabwe and to a certain extent by South African Courts. It is hoped that by coming up with such a comparison the law on sick leave will be made clear. The section in question is section 14 is it is broken down into 5 subsections that will now be examined.

SECTION 14 (1)

Section 14 (1) provides as follows:

“Unless more favourable conditions have been provided for in any employment contract or in any enactment, sick leave shall be granted in terms of this section to an employee who is prevented from attending his duties because he is ill or injured or undergoes medical treatment which was not occasioned by his failure to take reasonable precautions”.

This provision provides parties to an employment relationship to come up with better conditions for Sick Leave. These better conditions can be found in a contract of employment or any other enactment such as a Collective Bargaining Agreement. Once the better conditions have been agreed upon an employer is bound by the latter. These better conditions take precedence over section 14.

In Zimasco v Maynard Marikano[i] the employer and employee agreed to better terms compared to the ones provided in section 14. The employer then deviated from the provisions set out in its policies. The Supreme Court in this matter did not tolerate such deviation from set standards and had no option but to rule that:

“In the circumstances the decision by the appellant to terminate the appellant’s contract of employment without reference to its own policy and procedures was irregular. The finding that there was an irregularity in the termination of the respondents’ contract of employment cannot therefore be impugned.”

Zimasco v Maynard Marikano points to the fact that employers can provide for better sick leave conditions in their policies. These policies are binding and cannot be circumvented for the sake convenience.

SECTION 14 (2)

Section 14 (2) reads:

During any one-year period of service of an employee an employer shall, at the request of theemployee supported by a certificate signed by aregistered medical practitioner, grant up to ninetydays’ sick leave on full pay.”

In Thandekile Zulu v ZB Financial Holdings (Private) Limited[ii] the phrase “one-year period of service” was construed as a period of 12 months from the date the employee fell sick.

The section makes it mandatory to have the request for sick leave supported by a certificate that would have been signed by a registered medical practitioner. The term “registered medical practitioner” poses no challenges as these are health personnel registered in terms of the requisite laws of Zimbabwe.

Problems may arise when an employee brings in “sick note” from an unregistered traditional healer. In the South African case between Kievits Kroon Country Estate (Pty) Ltd v Mmoledi [iii]the Supreme Court of Appeal in South Africa argued that a note from a traditional healer ought to be construed as a sick note for purposes of sick leave. In explaining this position, the court remarked:

“The certificate from the traditional healer was considered ‘meaningless’ and was therefore rejected as proof of illness. But had he understood it to be equivalent to a medical certificate or tried to understand its import by asking the respondent to explain its meaning, instead of summarily rejecting it, he may well have accommodated her request”.

This South African decision may not bind Zimbabwean Courts. It may have persuasive effect on future judgements. This therefore means that practitioners must  trade with caution when dealing with “sick notes” emanating from traditional healers who are not registered.

SECTION 14 (3)

Section 14 (3) reads:

“If, during any one-year period of service of an employee, the employee has used up the maximum period of sick leave on full pay, an employer shall, at the request of the employee supported by a certificate signed by a registered medical practitioner, grant a further period of up to ninety days’ sick leave on half pay where, in the opinion of the registered medical practitioner signing the certificate, it is probable that the employee will be able to resume duty after such further period of sick leave.”

This section seems straight forward. Any employee can only be granted a further 90 days of sick leave on half pay if a medical practitioner is of the view that the employee will be able to refuse normal duty at the expiry of the 90 days. If the employee’s prospects of recovery are slim, then section 14 (4) will kick in and the employee will have to be retired on medical grounds.

SECTION 14 (4)

Section 14 (4) stipulates that:

“If, during any one-year period of service, the period or aggregate periods of sick leave exceed— (a) ninety days’ sick leave on full pay; or (b) subject to subsection (3), one hundred- and eighty-days’ sick leave on full and half pay; the employer may terminate the employment of the employee concerned”.

This subsection provides an employer with unfettered right to terminate a contract of employment upon the lapse of 90 days sick leave on full pay or the 180 days. This provision has been a subject of great controversy. In Zimasco v Maynard Marikano the supreme court remarked in its obiter dictum that section 14 (4) had far reaching consequences for the employee and as a result the audi alterum paterm rule had to be observed.

It is argued that the correct position is now found in Thandekile Zulu v ZB Financial Holdings (Private) Limited in which the court highlighted the current position as follows:

“In light of the above, I am of the view that the provision does not take away the employer’s unfettered discretion to terminate employment due to incapacity. It would be a gross miscarriage of justice to impose an onerous obligation on the employer where the clear language of the statute does not provide such an obligation.”

Section 14(4) does not therefore provide the employer with any other obligation when terminating a contract on medical grounds. The picture will be totally different if the employer has a sick leave policy that provides better conditions compared to the ones in the Labour Act.

SECTION 14 (5)

Section 14 (5) provides that:

“An employee who so wishes may be granted accrued vacation leave instead of sick leave on half pay or without pay”.

Section 14(5) applies when an employee has exhausted the sick leave days provided under section 14(3) as mentioned above. It is submitted that the section can only be raised if there is an opportunity for the employee to recuperate and resume normal duties.

SOURCES


[i] Zimasco v Maynard Marikano (SC 6/14)

[ii] Thandekile Zulu v ZB Financial Holdings (Private) Limited (SC 48/2018)

[iii] Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 209 (SCA)

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