Thandekile Zulu v ZB Financial Holdings Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/176/13
HELD AT HARARE 6TH MAY 2013
CASE NO
JUDGMENT NO LC/H/176/13
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/176/13

HELD AT HARARE 6TH MAY 2013		     CASE NO LC/H/521/12

THANDEKILE ZULU					 	Appellant

ZB FINANCIAL HOLDINGS  LTD				Respondent

Before The Honourable G Musariri, President

For Appellant		Mr P Mutasa, Unionist

For Respondent		Mr S Sadomba, Attorney

MUSARIRI, G:

On the 12th April 2012 the Honourable C Kabasa made an arbitration award.  In terms thereof he dismissed Appellant’s claim of unfair dismissal by Respondent.  Appellant then appealed to this Court.  Her grounds of appeal were as follows,

“The Arbitrator misdirected himself in one or all of the following points of law:

In failing to make a correct application of the law relating to prescription of disputes according to Section 94 of the Labour Act (Chapter 28:01) and

In failing to give a correct interpretation of section 14 of the Labour Act Chapter 28:01).”

In the course of oral argument Respondent’s attorney conceded, rightly so in my view, that the matter was not prescribed.  He agreed with Appellant’s representative that the Arbitrator misdirected himself on that point.  This effectively meant that the award firmed or fell depending on this Court’s determination of the 2nd ground of appeal.

The facts of the matter were aptly set out in Respondent’s Heads Of Argument.  These are they:

Appellant was employed by Respondent in the position of a Clerk from  2nd September 1991 up to 31 October 2009.

On 21 January 2009 Appellant applied for sick leave from the next day up to 8 February 2009.

Upon her request, the sick leave was extended to 24 February 2009.

She submitted another application for indefinite sick leave from 24 February 2009 onwards.

As at August 2009 she had not reported back at work and upon inquiry she produced a letter from her doctor which confirmed his advice to take bed-rest since February.

In October 2009 against she failed to report for work.  Upon inquiry she indicated that she was not feeling well and was unsure as to when she would return to work.

As at 30 October 2009 her cumulative period of continuous absence amounted to 251 days.

By letter dated 2 December 2009 Respondent terminated Appellant’s employment with effect from 31 October 2009.

The termination was done in terms of section 14 (4) of the Labour Act Chapter 28:01 (hereafter called the Act).

The said section of the Act provides that,

“14 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 eighty days’ sick leave on full pay and half pay;

the employer may terminate the employment of the employee concerned.”

(The underlining for emphasis is mine.)

Appellant was off-sick for 251 days. The Act provides for a maximum of 180 days’ sick leave.  Clearly Appellant exceeded the statutory limit.  However her representative came up with an ingenious argument.  He argued that the phrase “any one year period of service” refers to the employee’s actual service.  Appellant joined Respondent on 2nd September 1991.  Thus her one-year-period of service commenced in each year on her anniversary  date that is 2nd September.  Respondent not having terminated her by the 1st September 2009, she began a new one-year-period from the 2nd September 2009.  By the time of her termination on 30th October 2009 she had only been away for about 60 days.  Thus her case fell outside the ambit of section 14 (4).

I agree that a literal reading of the section might yield the interpretation urged  by Appellant.  However such an interpretation leads to an absurdity.  It breaks up a continuous period of sick leave into portions demarcated by an employee’s anniversary date.  What is the purpose of the demarcation?  I find none in the Act.  Sick-leave is provided for the benefit of the employee.  Caps on the maximum duration of the leave are meant for the benefit of the employer.  The provision strikes a fine balance between the interest of the employer and employee.  Allowing the absurdity urged upon this Court by Appellant’s representative upsets the said balance.  Accordingly I read the one-year-period in the section to also include a calendar year as argued by Respondent’s attorney.  I am fortified in this view by the case of

ZRA v Murowa Diamonds 2009 (2) ZLR 213 (S) where Garwe JA, stated at p.218, that,

“The grammatical and ordinary sense of words is to be adhered to unless that would lead to some absurdity or some repuguance or some inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further:…”

(The underlining for emphasis is mine.)

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT