This is an appeal against the entire judgment delivered..., in the Labour Court at Harare on 31 May 2013.
The
facts of this matter are common cause. The appellant was employed as a
Clerk by the respondent from 2 September 1991 to 31 October 2009. In
January 2009, the appellant fell ill and was granted paid sick leave
from 22 January 2009 to 8 February 2009. Thereafter, the leave was
extended by 15 days covering the period from 10 February 2009 to 24
February 2009. The appellant then submitted another sick leave
application for an indefinite period from 24 February 2009 onwards. By
August 2009, the appellant had not yet reported to work, and, upon
enquiry by the respondent, she produced a letter from her medical doctor
which confirmed his advice to her to take bed rest from February 2009
onwards.
Come October 2009, the appellant had still failed to
report for work, and, upon enquiry, she indicated that she was not
feeling well and was unsure as to when she would return to work. As at
30 October 2009, the appellant's cumulative period of absence amounted
to 251 days. By letter dated 2 December 2009, the respondent
unilaterally terminated the appellant's employment with effect from 31
October 2009.
The termination was in terms of section 14(4) of the Labour Act.
The
appellant challenged the dismissal as unfair and in contravention of
section 14(4) of the Labour Act. The matter went before a labour officer
who issued a certificate of no settlement and referred it for
arbitration. The arbitrator upheld the respondent's claim that the
matter had prescribed, but, nonetheless, held that the dismissal was in
terms of section 14(4) of the Labour Act, and, therefore, it was lawful.
Aggrieved
by this decision, the appellant appealed to the Labour Court against
the decision of the arbitrator. At the hearing in the Labour Court, the
respondent's attorney conceded that the matter had not prescribed.
The issue that remained for determination by the court was the interpretation of section 14(4) of the Labour Act.
The
court interpreted a period of one year to mean one calendar year and
dismissed the appellant's appeal on the basis that she had exceeded the
prescribed number of sick leave days. The appellant appealed to this
Court on the following grounds:
1. The Labour Court erred in law
in its interpretation of the phrase “any one-year period of service”,
under section 14(4) of the Labour Act [Chapter 28:01], to refer to a
calendar year and in holding that any interpretation of the phrase based
on the employee's employment anniversary date would lead to an
absurdity.
Whereas, the correct interpretation of the phrase that
accords with social justice at the workplace and principles of fair
dismissal includes computation based on the employee's anniversary date;
use of the calendar year, in fact, potentially results in an absurdity
of breaking up the continuous period of sick leave by calendar year
demarcations which are not provided in the Labour Act and that
potentially leads to gross prejudice to the interests of the employer by
unduly extending the sick leave.
2. The court a quo, and
Arbitrator Kabasa, erred in law by mis-interpreting section 14(4) of the
Labour Act [Chapter 28:01] so as to grant an employer unfettered
authority to automatically terminate the contract of employment on the
expiry of the 180 sick leave days, as a consequence thereof, the court a
quo and the arbitrator wrongfully failed to consider the appellant's
submission that despite the expiry of any 180 days of sick leave, the
dismissal was still unfair because of the failure by the employer to
consult her on whether continued employment was possible and that she
had sought, and believed was granted, unpaid sick leave. Given that the
illness arose out of pregnancy complications and miscarriages, such
failure was a gross misdirection as employees are protected from unfair
discrimination on the basis of pregnancy and gender.
From the papers, it appears that the two issues arising from this appeal are;
(i) Whether the court a quo erred in its interpretation of section 14(4) of the Labour Act [Chapter 28:01]; and
(ii)
Whether or not an employer has an unfettered right to terminate
employment under section 14(4) of the Labour Act [Chapter 28:01].
I shall consider them in turn below.
1. Whether the court a quo erred in its interpretation of section 14(4) of the Labour Act
It
was contended, for the appellant, that the court a quo mis-interpreted
section 14(4) of the Labour Act [Chapter 28:01]. The provision is
couched as follows:
“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
appellant's counsel submitted that the phrase 'one year period of
service' ought to be construed to mean a period of twelve months
calculated from the date on which the appellant commenced employment
with the respondent, that is, a period running from 2 September to 1
September the following year, or 'anniversary date/period'; while the
court a quo interpreted the phrase to mean “a calendar year”; and a
third meaning of “a period of twelve months” is another possible literal
meaning of the phrase.
The rules of statutory interpretation
dictate that the words of a statute shall be given their ordinary
grammatical meaning unless doing so leads to an absurdity. In the case
of Venter v Rex 1907 TS 910, INNES CJ said the following…,:
“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.”
This approach was followed by McNALLY JA in Chegutu Municipality v Manyara 1996 (1) ZLR 262 (S)…, where he said:
“There
is no magic about interpretation. Words must be taken in their context.
The grammatical and ordinary sense of the words is to be adhered to, as
LORD WENSLEYDALE said in Grey v Pearson (1857) 10 ER 1216 at 1234;
'Unless
that would lead to some absurdity or some repugnance or inconsistency
with the rest of the instrument, in which case the grammatical and
ordinary sense of the words may be modified as to avoid that absurdity
and inconsistency - but no further.'”
But what if the literal
interpretation, the grammatical or ordinary sense of the words, yields
two or more meanings - which literal meaning is to be preferred?
For,
there can conceivably be more than one grammatical meaning of words, as
this case clearly demonstrates: a “year” literally could mean “a period
of 12 months” or “an anniversary period” or “a calendar year” – all
with different computational consequences.
In my view, the
'absurdity' or 'repugnance' principle may be applied to select a literal
meaning that does not lead to “some absurdity or some repugnance or
inconsistency with the rest of the instrument”. In other words, the
'absurdity or repugnancy' principle, while ordinarily applied vertically
to justify a departure from the literal meaning, may, in my view, be
deployed horizontally, in specific circumstances, to facilitate a
selection of the most appropriate among competing literal meanings.
The Collins Dictionary of the English Language (1979) defines “year” as;
“1.
A period of time, the calendar year, containing 365 days or in a leap
year 366 days…, and is reckoned from January 1 to December 31.
2. A period of twelve months from any specified date…,.”
Thus, this definition encompasses all the three possible meanings indicated above.
In
casu, the literal interpretation of the provision, as suggested by the
appellant, to mean 12 months calculated from each employee's anniversary
date of engagement, does lead to an absurdity. This means that the
respondent, in the present case, would be forced to reinstate an
employee who spent 251 days away from work, a period which is outside
the statutory limit of 180 days. Such wildly unreasonable result can
never have been the intention of the legislature. There is also the
added administrative inconvenience of having to calculate the sick leave
days based on each employee's anniversary date of engagement and the
consequent inconsistencies from one employee to the other. There is,
therefore, adequate reasons for discarding the “anniversary year”
literal meaning as suggested by the appellant.
The interpretation
given to the phrase by the court a quo also leads to an absurdity. It
interpreted a period of one year to mean one calendar year, i.e. 1
January to December 31, and that certainly would create an absurd
situation. For instance, if an employee falls sick on 1 July and takes
their 180 days of sick leave on full and half pay till 31 December, he
or she would still be entitled to apply for sick leave again on 1
January the following year because they would have entered another sick
leave cycle. The number of days that the employee would thus spend on
sick leave would amount to a period of one year or 365/366 days – a
period more than twice the statutory 180 days, and, certainly, a
situation which could never have been intended by the legislature.
The
most appropriate interpretation of the phrase, in my view, should be
drawn from section 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.
It
logically follows that the year in section 14(4) of the Labour Act
[Chapter 28:01] means a period of twelve months from the date on which
the employee fell sick.
In this case, the appellant's sick leave
cycle commenced on 22 January 2009 and would end on 21 January the
following year. This interpretation is in line with the intention of the
legislature to give each employee one hundred and eighty days of sick
leave. The appellant clearly exceeded the number of days an employee is
entitled to because she was on sick leave for two hundred and fifty-one
days instead of one hundred and eighty days.
I therefore find
that the court a quo erred in its interpretation of 'one year period'
under section 14(4) of the Labour Act [Chapter 28:01].
Although
the appellant's preferred interpretation has been found to be leading to
as much absurdity as the respondent's, she must be viewed as having
been successful in challenging the interpretation adopted a quo, and,
thus, successful on the point in the appeal.
