Section 14 (4) of the Labour Act (Chapter 28:01) grants the employer the right to terminate the employment of an employee who has exhausted the sick leave prescribed in the Act or in the contract of employment if this is more favourable.
Section 14 (4) provides as follows;
(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
The question which arises is whether the statute as cited above gives the employer an absolute and unfettered right to elect to terminate the employment of an employee who has exhausted the maximum sick leave period specified in the Act without compliance with any substantive and procedural fairness.
That question was answered by the Supreme Court in the case of Zimasco (Pvt) Ltd v Maynard Marikano SC 6/14 as per Garwe JA in the following words;
“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 that he has taken the sick leave contemplated in s 14(4) and that for that reason it is intended to terminate his contract of employment in terms of that section on a date specified in such notice unless the employee returns to work before the expiration of the specified period. In my view it would not be proper for an employer to invoke the provisions of s 14(4) of the Act and without notice to the employee, proceed to terminate his contract of employment. In short the audi alteram principle would still need to be respected and failure to do so would render any such termination null and void.”
Put simply, the Supreme Court in Zimasco v Marikano judgment (supra) in obiter though,remarked that the right to terminate on medical grounds is subject to compliance with substantive and procedural fairness in that the employer is required to at least inform the employee affected of its intention to terminate on medical grounds by serving them with a notice and the employer is also expected to respect the audi alteram principle by hearing the side of the employee before the decision to terminate is taken.
However, this decision was revisited in the case of Zulu v ZB Financial Holdings (Private) Limited SC48/18 where the Supreme Court as per Hlatshwayo JA held as follows;
“A reading of this section shows that it is silent on the requirement for the employer to give notice to the employee before terminating employment under the section. In the absence of such a requirement, to hold that the employee ought to have been afforded a chance to be heard before dismissal is tantamount to “reading into” and altering the clear language of the statute…
In this case, the Act gives the employer the discretion to terminate the employment of the employee and does not go further to state that the employee should be notified of the impending dismissal. 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…
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.”
See also Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 SC at p246
The decision in Zulu v ZB Financial Holdings (Pvt) Ltd (supra) entrenches the position that the right of the employer to terminate the contract of employment for incapacity as granted by Section 14(4) of the Act is absolute and unfettered which means that the employer has no obligation to notify the affected employee of the intention to terminate.
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