R.S.C. Steelforce (Pvt) Ltd v Kennedy Matafi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/185/23
HARARE, 23 SEPTEMBER 2022
AND 4
JULY, 2023
CASE NO LC/H/446/22
R.S.C. STEELFORCE (PVT) LTD
APPLICANT
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==============================IN THE LABOUR COURT OF ZIMBABWE
HARARE, 23 SEPTEMBER 2022 AND 4
JULY, 2023

JUDGMENT NO LC/H/185/23
CASE NO LC/H/446/22

R.S.C. STEELFORCE (PVT) LTD
APPLICANT

KENNEDY MATAFI
RESPONDENT

Before the Honourable Chivizhe Judge:

For Applicant    Mr I. Musiiwa (Legal Practitioner)

For Respondent    In Person

CHIVIZHE, J:

This is an appeal against a determination by Ms P. Chiyangwa Designated Agent, which determination was issued on the 19th of April, 2022. In her determination the Designated Agent had directed the reinstatement of Respondent without loss of salary and benefits.

The material background facts of the matter are as follows. The Respondent was employed by the Appellant as an Accounts Clerk from 2000 up to September 2021. In or around February 2021 he fell and was granted paid sick leave from February 2021 to April 2021. The leave was further extended by an additional 90 days with the Respondent being placed on half-salary for the period. After the expiry of the 90 days Respondent went back to his medical doctor who certified that he was not yet fit to resume his normal duties. He was given 60 more days to fully recover and was told to only engage in light work.

The Appellant however proceeded to unilaterally terminate Respondent’s employment on the 15th of September 2021 after taking the position that it could not afford to give Respondent light work. The termination was on the basis of Section 14(4) of the Labour Act [Cap 28:01]. The Respondent being aggrieved by the Appellant’s decision referred a claim for unfair dismissal and non-payment of terminal benefits to the NEC for the Engineering, Iron and Steel Industry. The matter was placed before the Designated Agent Ms P. Chiyangwa.


After considering submissions made by both parties before her and the applicable law she handed down an award which is the subject of the present appeal.

**GROUNDS OF APPEAL**

The appeal has been noted on the basis of the following grounds:

a. She failed to realise, as she should have done, that section 14 of the Labour Act [chapter 28:01] does not provide for second opinion when there has been an exhaustion of the prescribed 180 days sick leave; and b. She misinterpreted that the Labour Act provides for a second medical opinion I n order for the employee to dismiss an employee.

The Appellant, in its prayer is seeking for this court, to, after upholding the appeal, set aside the Designated Agent’s determination and substitute with an order in the following terms;

“a. Appellant’s decision to dismiss the Respondent be and is hereby upheld;
b. Respondent pay costs of this appeal.”

The appeal has been opposed by the Respondent. The Respondent who is appearing as a self-actor in his Notice of Response made a submission to the effect that the grounds of appeal as filed by Appellant are based on an error at law. It is submitted that the Appellant misinterpreted the relevant provisions of the Labour Act [Cap. 28:01], as the provisions outline that upon expiry of 180 days on sick-leave, the provisions do not make it conclusive as the term ‘may’ is utilised. In other words, so he submits, the employee may be granted more sick-leave days. Respondent submits that in his case the medical doctor having granted him a further 60 days on light duty the Appellant could have sought and obtained a second opinion if it was not convinced that he could not fulfil his contractual obligations. The Appellant had instead proceeded to terminate him. This according to Respondent was unlawful. The Respondent makes the further submission, that, contrary to Appellant submissions, Appellant failed to adhere to the provisions of **Section 14 of the Labour Act**.

**[Cap 28:01].** The Designated Agent was therefore correct in the conclusion reached in her award. The Respondent prayer is for the dismissal of the appeal.

**Points in Limine**

Before the hearing Appellant made an oral application for condonation for the late filing of Heads of Argument. The application not being opposed by Respondent was duly granted. The parties also made oral submissions which were based largely on their heads of argument as filed before the court. The parties were also granted an opportunity to seek to obtain an out of court settlement. On the next date of appearance however the parties advised of their failure to agree. On the advice of the parties the court reserved its judgement in order to determine the matter on the basis of papers as filed by the parties.

**MERITS**

There is only one simple issue for determination before this court. It is whether or not the Designated Agent erred and misdirected herself in interpreting **Section 14 of the Labour Act [Cap 28:01]**. The Appellant position is she did err and misdirect herself firstly, when she failed to realise the section does not provide for a second opinion where there has been an exhaustion of the 180 days sick leave and secondly, in finding, that, the same provisions allows for a second opinion before the employer takes the option to terminate employment on medical grounds. The Respondent’s counter-position is the Designated Agent did not err or misdirect herself as **Section 14(4)** allows for the second-opinion where the employee has exhausted the 180 days sick leave.

**THE DESIGNATED AGENT’S AWARD**

In her award the Designated Agent initially outlined the provisions of **Section 14(4)**. She proceeded to interpret that provision as allowing for, firstly, a period of 180 days on sick leave. Secondly, she also found that the provision does not make the 180 days conclusive because of the use of ‘may’. She also made reference to **section 14(5)** as even allowing the employee to be further granted vacation on half-pay or without pay instead of sick leave. Her findings read as follows;

“The argument in this case is premised on the provisions of the quoted section of the Labour Act. It is clear from the submissions that the contract of employment for the Claimant ought to be terminated based on the provisions of this section. The Claimant in his oral sub missions agreed that he has not been well for a period of 180 days. His argument however is based on the Doctor’s recommendation at the expiry of the 180 days that he be given light duty work for another 60 days.

There is no written confirmation from a registered medical doctor to support that the Claimant would be able to resume his duties after being granted another 90 days on half pay as is provided for by the law. The fitness of the Claimant was never confirmed by a medical doctor during the 180 days that he was on sick leave and was only done after the expiry of the 180 days.

The law does not make the 180 days conclusive as the term **may** terminate has been used. There is also an option as provided under section 14*(5) that “**An employee who so wishes may be granted accrued vacation leave instead of sick leave on half pay or without pay”.** Hence under the circumstances where the medical Doctor granted 60 days on light duty the Respondent could have sought for a second opinion if he was convinced that the Claimant could not fulfil his contractual obligations due to ill health. Since the letter had confirmed that the Claimant could do light duty work and the Claimant had availed himself for duty, sending him home and eventually terminating his contract of employment without a second opinion from a registered medical practitioner was unfair. A medical practitioner from a neutral body could have given an independent opinion on whether the Claimant was fit for duty or not. It was only after such recommendations that the Respondent would have no other option but to terminate the contract of employment based on medical grounds.”

Further down in her award the Designated Agent also made a finding that Appellant had not adhered to provisions in **Section 14(4) of the Labour Act**. She opined that Appellant would still need to reinstate Respondent and seek for a second opinion on Respondent health status before proceeding to terminate his contract on medical grounds. She stated as follows;

“Therefore, although the Respondent submitted that he had adhered to section 14 of the Labour Act the provisions of the said section were not adhered to in totality. The Respondent still need to reinstate the Claimant and seek for a second opinion on the health and fitness of the Claimant if he is convinced that he has not recovered. Only then can the contract of employment of the Claimant be terminated based on medical grounds.”

In regards the claim for terminal benefits the Designated Agent found the Appellant should pay to Respondent his pension or in the event of the pension being less than the gratuity Respondent would have to be paid the difference thereof. She relied on the provisions of relevant **Collective Bargaining Agreement for the Industry** that is **Statutory Instrument 134 of 2017** for the conclusion reached. In her final determination she ordered Appellant to reinstate Respondent without loss of salary and benefits with effect from the date of unlawful termination of employment that is from September 2021. In the event that reinstatement was no longer tenable the Appellant was directed to pay damages in lieu of reinstatement the quantum of which was to be agreed between the parties failing which the parties were to approach the tribunal for quantification thereof.

**THE LAW AS APPLIED TO THE FACTS**

**Section 14 of the Labour Act [Cap 28:01]** provides as follows;

**Sick Leave**

(1) 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.

(2) During an one-year of service of an employer an employer shall, at the request of the employee supported by a certificate signed by a registered medical practitioner, grant up to ninety days’ sick leave on full pay.

(3) If, during any one-year period of service of an 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.

(4) 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 eight days’ sick leave on full and half pay; the employer may terminate the employment of the employee concerned.

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

It is clear on the basis of the authority in **Thandekile Zulu Financial Holdings (Pvt) Ltd SC 48/18** to which this court was aptly referred by Appellant that the provision in **Section 14 Labour Act [Cap 28:01]** codifies the common law principle that an employer is entitled to terminate employment due to incapacity which may be driven by ill-health. In that matter, **Hlatshwayo J.A.** writing on behalf of the Supreme Court, opined as follows;

“This provision codifies the common law principle that an employer is entitled to terminate employment due to incapacity. This common law [principle is entrenched in our law and there is a presumption that a statute cannot alter the common law without saying so explicitly. This Principle finds authority in the case of Phiri and Ors v Industrial Steel Pile (Pvt) Ltd 1996 (2) ZLR 45 (S), wherein the following was stated at page 49:

There is a presumption, in the interpretation of statutes, that Parliament does not intend a change in the common law, unless it expresses its intention with irresistible clearness or it follows by necessary implication from the language of the statute in question that it intended to effect such alteration in the common law, for construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to sin against one of the most familiar rules of construction …’ Per **Lord Halsbury LC in Bank of England v Vagliano [1891]C AC 107 at 120.”**

The Appellant has also placed reliance on **Girjac Services (Pvt) Ltd vs Mudzingwa 1999(1) ZLR 243 SC** where the court stated as follows

“….Nonetheless, the fact that the employee is incapacitated by a cause beyond his control – by an act of God, if you like – does not deprive the employer of the right to terminate the contract where the absence was unreasonable. Non-performance by the employee of his duties for an unreasonable time justifies the employer in refusing to perform his part of the contract and considering his obligation at an end.”

Finally, the Appellant has also referred to Berretta vs Rhodesia Railways 1947 (2) SA 1075 (SR) where the court found that

“.....if the disability persists for a period which, judged on the circumstances of the particular care, renders it unreasonable that the other party should continue bound whilst receiving no benefit from the contract, such party is entitled to terminate the contract......”

On the basis of the authorities as referred to above it is clear that the Designated Agent erred/misdirected herself in finding that the Appellant had failed to adhere to Section 14 of the Labour Act [Cap 28:01]. The facts in this matter clearly showed the Respondent was given 90 days sick-leave from February, 2021 to April 2021. He was further granted 90 more days on half salary which is what is contemplated by Section 14(2) and (3) referred to above. The facts clearly show Respondent had been ill for sometime. The certificate of the medical practitioner to be unfit for normal duties sealed the fate for Respondent. There was clearly no basis on which Appellant could have been asked to continue to be bound to the contract in such circumstances. This position has been clearly articulated in authorities such as Thandekile Zulu vs Financial Holdings referred to supra. The first ground of appeal succeeds.

The second ground of appeal is equally merited. The Designated Agent erred and misdirected herself in interpreting the provisions as allowing for a second medical opinion by reason of the use of ‘may’ in section 14(4)(b).

It is the position of law, in particular, under the rules of statutory interpretation, that words of a statute should be given their ordinary grammatical meaning under it. The court was aptly referred by Appellant to the authority in Venter vs Rex 1907 (SR) where the court found that.

“It appears to me that the principle we should adopt may be expressed somewhat in this way: that when to give plain words of a statute their ordinary meaning would lead to absurdity so glaring that it could never have been contemplated by the legislature, or where it could lead to a result contrary to the intention of the legislature, as shown by the context or by such other consideration as this court is justified in taking into account, the court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature.”
 The Designated Agent in this case interpreted the use of ‘may’ in the provision to mean that 180 days was not conclusive. Her reasoning was clearly flawed. It is clear that the use of ‘may’ in that section is designed to give an employer two options, that is either to terminate employment or to continue to give an employee further leave. The fact that in the next subsection (5) reference is made to accrued vacation leave suggests that the intention of the legislature was for an employer in such circumstances to allow an employee so wishing to extend his/her sick leave to then resort to seek for vacation leave based on his/her accrued days, such vacation leave is to be taken on the basis of half pay or without pay. This is a more reasonable interpretation of Section 14(4) & (5) than the interpretation given by the Designated Agent. There is clearly no provision laid in the section 14 for a second opinion from another medical doctor to certify that the Respondent was indeed unfit to resume normal duties. It is the court finding that given the lengthy period on which Respondent was on sick leave and that he had exhausted his sick leave days the Appellant had an option to either terminate him or grant him more leave based on his vacation days. Appellant opted for the former. That decision cannot be said to be unlawful. On this basis the appeal simply has to succeed.

In the result it is ordered as follows;

(1) The appeal succeeds.

(2) The determination by Ms P. Chiyangwa, Designated Agent dated 19th April, 2022 be and is hereby set aside and substituted with the following;

“The claim for unfair dismissal and non-payment of terminal benefits be and is hereby dismissed. The Respondent decision to terminate claimant from employment is upheld”

(3) There is no order as to costs.
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