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Aspects of termination of employment for incapacity – some insights

Section 14(4) of the Labour Act permits an employer to terminate the employment of an employee who has exhausted the sick leave prescribed in the Act. A more often raised question relating to this subject matter is that, whether an employer is obliged to notify an employee in anticipation of, or upon, the expiry of the sick leave days? In light thereof, this article seeks to give a short and brief answer to this.

 

It is important to restate the provision:

 

(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 and half pay; the employer may terminate the employment of the employee concerned

 

In brief, there is no obligation under s 14 (4) of the Act for the employer to notify the employee before dismissing him or her from employment if he or she exceeds 90 day sick leave on full pay or 180 day sick leave on full and half pay. In this case, the Act gives the employer the discretion to terminate the employment and does not go further to state that the employee should be notified of the impending dismissal. In the absence of such a requirement, to hold that the employee ought to be afforded a chance to be heard before dismissal is tantamount to “reading into” and altering the clear language of the statute. However, there is a catch:

 

Common law position – whether notice is required where there is incapacity  

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.

 

Since the decision to terminate an employment contract has far reaching consequences, one should assume that before such a decision is taken the employer would be obliged, at the very least, to advise the employee of the fact.  On the other hand, the audi alteram principle would still need to be respected and failure to do so would render any such termination null and void. While the right is unfettered, the better approach in terms of the common law is to notify the employee.

 

The Supreme Court Cases

In Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 SC at p246:

 “… 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.”

 

Zulu v ZB Financial Holdings (Private) Limited SC48/18,

 

“…. the provision (section 14[4]) 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.”

 

How to calculate the one-year period of service

Another issue that arises from this provision is the meaning of the one year period. Most employers are misguided regards to the calculation of this one year period. The Zulu case supra, is instructive to this end. It is stated that the most appropriate interpretation of the phrase, should be drawn from s 33 (6) (d) of the Interpretation Act [Chapter 1:01] which states that in any enactment, a reference without qualification to a year shall be construed as a reference to a period of twelve months. Since the life of law is in logic, it therefore follows that the year in s 14 (4) means a period of twelve months from the date on which the employee fell sick.