Reformed Church in Zimbabwe v Mugove Mazuru

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MS/14/2016
HARARE, 17 MARCH 2016
CASE NO. LC/MS/14/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/MS/14/2016

HARARE, 17 MARCH 2016			     	    CASE NO. LC/MS/58/15

AND 13 MAY 2016

In the matter between:-

REFORMED CHURCH IN ZIMBABWE 			Appellant

And

MUGOVE MAZURU						Respondent

Before Honourable L. Hove, Judge

For Appellant	Mr J. Mpoperi (Legal Practitioner)

For Respondent	Ms S. Chihombe (Trade Unionist)

HOVE, J:

The appellant employed the respondent as an accounting assistant in 2008.

Appellant outlined the facts of the matter as follows;

Due to continuous ill health the respondent went on sick leave in May, 2013 up to October 2013 for a period of 180 days.

In November 2013 after the 180 sick leave period, the respondent reported for work but it was apparently very clear to all concerned that the respondent was still very ill and unfit for duty.  It was agreed that the respondent should go on unpaid leave while recovering.

When the respondent’s condition did not improve, the appellant decided to hold an inquiry with the respondent and terminated her contract due to incapacity.  In outlining the facts before the court in its heads of arguments the appellant has not given the court any dates as to when it was that the respondent was to be on sick leave?  And when the meeting was convened.

The respondent on the other hand submitted that in November 2013 when she was asked to go on unpaid leave, she was fit for work and kept pressurizing the employer that she should resume her duties and it was only in September 2014 that the employer called the meeting.

In 2015 there apparently was a fixed term contract entered by the parties which expired in February 2015 and it is only then that the contract of employment between the parties was terminated with effect from November 2013 on medical grounds.

The employer had a right in terms of section 14 (4) (b) of the Labour Act [Chapter 28:01] which provides as follows;

If, during any one-year period of service, the period or aggregate periods of sick leave exceed

Ninety days sick leave on full pay; or

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.

So in 2013, the respondent had exhausted her sick leave days and could have been terminated as the provisions of Section 14 (4) allow an employer to terminate if it is so minded.  It is not a must that the employer terminates but the section say “may” terminate

In casu parties seem to agree that in 2013 November the employer and the respondent decided to allow the respondent to go on unpaid leave while recovering.  The unpaid leave appear from the facts to have been indefinite.

As the years rolled by, the parties appear to have entered into a fixed contract.  The record does not show when this was entered into but it ended on or before February 2015.  When the employer terminated the respondent’s contract of employment in terms of section 14 (4) on the basis that the respondent had exhausted her sick leave days back then in 2013.

This was wrong.  The employer could have so acted within the one year that the respondent exceeded her sick leave days.  The provisions of section 14 (4) refer to; “if, during any one year period of service … the employer may terminate the employment of the employee concerned.”

The employer failed to terminate and opted to place the respondent on unpaid leave instead.

It cannot in the following year or the next following year as in casu, now elect to act in retrospect and decide to terminate as it did.  The termination was clearly unprocedural.  The employer acted outside the provisions of section 14 (4).

The arbitrator can thus not be faulted for holding as he did that the dismissal was unlawful.

If the dismissal was unlawful, the parties revert to their position before the unlawful dismissal and this is that the respondent was on an unpaid leave.

The respondent is not entitled to any salary as she was on unpaid leave, and secondly she rendered no services and the equable principle of no work no pay is applicable in casu.

The employer argues that by entering into a month’s fixed contract with itself in January 2015, the respondent rendered herself unavailable for the performance of the original contract or alternatively that the respondent ceased to be at the disposal of his original employer.

The case of Zimbabwe Sun Hotels (Pvt Ltd vs Lawn 1988 (1) ZLR 143 (S) was given for authoring for the above proposition.

The case is however clearly distinguishable from the present case.

Firstly, in the Zimbabwe Sun Hotels case (supra) the employee was suspended by say employer 1 and then accepted employment with employer 2 (another employer) in that case it was held that the act of taking up another contract of employment with another and different employer, the employee rendered herself unavailable for the first employer.

In casu, the respondent was not on suspension but was on unpaid leave “to recover”.  It is not unusual that while an employee is on leave, the employer can call her back for a fixed performance and one cannot argue that the employee has in those circumstances terminated the initial contract of employment by ceasing to be at the disposal of the employer.  He remains available since it’s the same employer.  The case sought to be relied on speaks of “taking up another employment with another employer elsewhere.”  This is not the case here.

It was also argued that by accepting to be employed on a fixed term contract, the respondent by conduct gave the impression that she was in agreement with the fact that she had been lawfully terminated.

This is an argument without merit, the circumstances in the case of SA Railways and Harbours v National Bank of SA Ltd 1924 AD 704 are not similar to the circumstances of this case.  The respondent is bound only to provide specified task for the same employer for a specified period and that does not in any way show that the respondent was accepting that their previous employer employee relationship had been terminated.

The respondent’s conduct of continuing to enquire with the employer as to when she may resume her duties shows that the respondent’s conduct was not one that showed that she accepted that the contract had been lawfully terminated.

The last issue to be considered was whether or not the arbitrator was correct in awarding, as he did, salaries for the period 2 November 2013 to 31 December 2014?

As has been indicated, the respondent rendered no services during this period and where one does not work, one cannot be paid.  That is equitable, fair and just.  In any case the respondent herself had agreed that she was on unpaid leave.  So that period remains unpaid.

In the result

I make the following order.

The contract of employment between the parties was unlawfully terminated.

The fixed term contract between the parties is valid and was lawfully terminated.

The respondent is not entitled to any back pay as she was on unpaid leave.

The appellant is to reinstate the respondent or pay her damages for the loss of her employment with effect from the date of this award.

Saratoga Makausi Law Chambers, appellant’s legal practitioners