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.
2.
Whether the Respondent had an unfettered right to terminate
employment under section 14 (4) of the Labour Act [Chapter 28:01]
Section
14(4) of
the Labour Act [Chapter
28:01]
permits an employer to terminate the employment of an employee who
has exhausted the sick leave prescribed in the Labour Act.
The
appellant's counsel argued that the provision, however, does not
give an employer an unfettered right to terminate such employment. He
relied on the decision of this Court in Zimasco
v Maynard Marikano
SC06-14
where, in that case, it was argued by the appellant that section
14(4) of the Labour Act gives an employer the absolute right to elect
to terminate the employment of the employee who has exhausted the
maximum sick leave period specified in the Labour Act. It had been
further contended that the right to terminate is not subject to
compliance with any particular procedures.
These
submissions were rejected by that court. At page 8 of the judgment,
GARWE JA said:
“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
section 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 section 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.”
In
essence, what these remarks mean is that the respondent ought to have
given notice to the appellant that it intended to terminate her
employment due to the fact that she had exceeded the number of sick
leave days specified in the law - however,
it is important to point out, with respect, that the above remarks by
GARWE JA were obiter.
The ratio
decidendi,
in my view, was that the Group
policy and procedures were not complied with by the appellant in that
case. The learned judge held that since section 14(1) of the Labour
Act provides that unless more favourable conditions are provided for
in an employment contract, sick leave shall be provided for in terms
of section 14 of the Labour Act, and the appellant ought to have
followed what was stipulated in the policy and procedures that were
incorporated in the employment contract.
I
turn now to address the question whether the employer has an
unfettered discretion to terminate employment under section 14(4) of
the Labour Act [Chapter
28:01].
It is important to restate the provision:
“If,
during any one-year period of service the period or aggregate periods
of sick leave exceed -
(a)…,.
(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.”
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.
The
remarks of GUBBAY
JA…, in Nxumalo
& Ors v Guni
1987 (1) ZLR 1 (SC) are apposite:
“The
language used is plain and unambiguous and the intention of the Law
Society is to be gathered therefrom. It is not for a court to surmise
that the Law Society may have had an intention other than that which
clearly emerges from the language used.”
In
this case, the Labour 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. This
principle finds authority in the case of Phiri
and Ors v Industrial Steel Pipe (Pvt) Ltd
1996
(2) ZLR 45 (S), wherein the following was stated…,:
“There
is a presumption, in the interpretation of statutes, that Parliament
does not intend a change in the common law, unless it expresses its
intention with irresistible clearness or it follows by necessary
implication from the language of the statute in question that it
intended to effect such alteration in the common law; for 'construing
the statute by adding to it words which are neither found therein nor
for which authority could be found in the language of the statute
itself, is to sin against one of the most familiar rules of
construction…,.':
per
LORD HALSBURY LC in Bank
of England v Vagliano
[1891] C AC 107 at 120.”
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.
In
the present case, it would be unjust for the respondent to be
compelled to keep the appellant in employment even after she has been
away for an unreasonable period. In Girjac
Services (Pvt) Ltd v Mudzingwa
1999
(1) ZLR 243 SC…, the court said:
“…,.
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.“
The
above authority clearly justifies the respondent's decision to
terminate the appellant's employment after she had been on sick
leave for a protracted period….,.
As
was stated in the case of Beretta
v Rhodesia Railways Ltd
1947
(2) SA 1075 (SR):
“….,
if the disability persists for a period which, judged on the
circumstances of the particular case, renders it unreasonable that
the other party should continue bound whilst receiving no benefit
from the contract, such party is entitled to terminate the
contract.”…,.
The
requirement to give notice, though laudable, is likely to import
uncertainties into the clear provisions of the Labour Act.
Does
the employer notify the employee in anticipation of, or upon, the
expiry of the sick leave days?
If
the former, how is a reply that the employee would be ready to resume
work slightly after the expiry of the leave to the treated? If the
latter, would that not amount to extending the statutorily stipulated
period of sick leave?
I
therefore find that there was no requirement under section 14(4) of
the Labour Act [Chapter
28:01]
for the employer to notify the employee before dismissing her from
employment. Any miscalculation of the periods of leave that may occur
in any given case can safely be dealt with through a challenge of the
dismissal.
The
appeal, while partially successful in upsetting the reckoning of the
sick leave days adopted by the court a
quo,
ought, on the whole, to be dismissed as that success had no impact on
the outcome of the appeal and may only be considered in assessing the
question of costs. This outcome, therefore, requires each party to
bear its own costs.
Accordingly,
the following order shall issue: This appeal is dismissed with each
party bearing its own costs.
