GARWE
JA:
This
is an appeal against the judgment of the Labour Court dismissing an
application by the appellant to file supplementary heads of argument
and setting aside the decision of the appellant to terminate the
respondent's contract of employment with itself.
The
facts of this case are largely common cause and are these.
The
respondent was employed by the appellant as a Medical Officer in
1995. He rose through the ranks to become the Health Services
Manager.
In
terms of his letter of appointment, the appellant's policies and
procedures were incorporated into his employment contract.
On
a date that is unclear on the papers, but between February and March
2009, the respondent was involved in a serious road accident, whilst
about the appellant's business.
The
respondent suffered serious injuries to his spine as a result of
which he was unable to attend to his official duties from 11 March
2009.
The
respondent was allowed to go on sick leave on full pay for a period
of ninety (90) days.
At
the expiration of that period, the respondent was still unable to
resume his duties and took more sick leave.
On
7 September 2009, the appellant's services director, a Mr Zvaipa,
wrote to the respondent directing him to furnish a copy of his
doctor's opinion, failure of which his remuneration and other
benefits were to be suspended.
Following
further correspondence exchanged between the two, the respondent made
it clear that he remained in the employ of the appellant until such
time as his contract was lawfully terminated.
On
18 September 2009 the appellant then wrote to the respondent advising
that since he had exceeded the maximum sick leave permissible in a
single year, his contract of employment was being terminated
forthwith in terms of section 14(4) of the Labour Act, [Cap
28:01]
(“the Act”).
Following
this development the appellant then filed an application for review
with the Labour Court on 9 October 2009.
In
the application the respondent alleged that the termination was
unlawful as the appellant had not followed the procedural steps
required at law or in terms of his contract of employment in
terminating his employment on medical grounds.
It
appears that on the same date the respondent filed what purported to
be a notice of appeal against the decision to dismiss him.
It
is apparent however that in both cases the respondent sought an order
setting aside the decision to terminate his contract of employment.
The
Labour Court treated the matter as an application for review.
After
hearing submissions from both parties, the court then reserved its
judgment on 15 March 2010.
On
15 November 2010, eight (8) months later, the appellant then filed an
application for leave to file supplementary heads of argument. The
supplementary heads of argument sought to raise the issue whether or
not the Labour Court had jurisdiction to entertain an application for
review in the first instance.
The
application was opposed by way of a letter to the Registrar. No
formal opposing papers were filed.
The
Labour Court dealt with the request as part of its judgment.
The
court was of the view that there should be finality in litigation and
that to allow a party to file heads of argument after judgment had
been reserved would defeat this principle.
The
Court therefore dismissed the application to file supplementary heads
of argument.
The
court further reached the conclusion that an employer does not have
the authority to summarily terminate an employee's contract of
employment in terms of section 14(4) of the Act and that, regard
being had to the purpose of the Act, namely the promotion of fair
labour standards, the employer was under obligation to conform to the
requirements of substantive and procedural fairness and that failure
to give notice to an employee of an intention to terminate a contract
of employment in terms of section 14(4) of the Act is fatally
irregular.
The
court further found that since the respondent's contract of
employment embodied other terms applicable in the event of sickness,
the appellant should have fully related to those terms and given the
respondent the option either of early retirement or being medical
boarded.
The
court concluded that as this had not been done there had been
procedural irregularities and consequently set aside the decision to
terminate the contract of employment of the respondent.
It
is against that order that the appellant has appealed to this Court.
Both
parties to this appeal are agreed that the appeal raises three (3)
issues for determination. These are:
(a)
Whether or not the Labour Court had jurisdiction to entertain the
respondent's application for review at first instance.
(b)
Whether the Labour Court erred as a matter of law in declining to
consider the issue of jurisdiction raised in the application to allow
the filing of supplementary heads of argument.
(c)
Whether the Labour Court was correct in holding, as it did, that the
right to termination in terms of section 14(4) was subject to
procedure and that any irregularity in those procedures entitled the
Labour Court to set aside the termination of the contract of
employment.
In
particular whether the appellant was obliged to give the respondent
the right to be heard before his contract was terminated and secondly
whether the appellant was obliged, in terms of the contract of
employment between the respondent and itself, to comply with medical
boarding procedures or the availing of an option of early retirement
before the contract of employment could be terminated.
THE
QUESTION OF JURISDICTION
The
appellant's submission on the question of jurisdiction is this.
The
Labour Court does not have unlimited jurisdiction over all labour
matters and such jurisdiction it may have has been specifically
provided for by law. There is no general right of application to the
Labour Court because section 89(1)(a) of the Act restricts the matter
to “applications … in terms of this Act”.
In
terms of the Act, disputes are required to be dealt with by a labour
officer. This is the first instance when a hearing takes place once a
dispute has been referred to such officer. It is only when the labour
officer is unable to settle the dispute properly referred to him, or
where he issues a certificate of no settlement and fails to refer the
matter to compulsory arbitration or where the labour officer refuses
to issue a certificate of no settlement, that a party can apply to
the Labour Court in terms of section 93(7) of the Act.
Only
in this way can a dispute such as the present come before the Labour
Court – this being one of the instances of an application
contemplated in section 89(1)(a) of the Act.
The
intention was never to give the Labour Court the power of review at
first instance but rather to place it on the same footing as the
Supreme Court. The legislature has been very specific as to the
nature of applications to be handled by the Labour Court.
The
appellant further argues that the power of review in terms of section
89(1)(d) is confined to those instances where the High Court has the
power of review in labour matters, and not to matters generally. If
indeed the High Court has no review jurisdiction in labour matters
then section 89(1)(d) confers no power of review on the Labour Court.
The
appellant further takes the point that the legislature has
established an elaborate chain of investigation and conciliation. The
labour officer is the court of first instance and it is to him that
the respondent should have directed his complain.
For
the above reasons the appellant submits that the Labour Court did not
have jurisdiction to entertain the application for review at first
instance.
The
respondent on the other hand argues that the Labour Court has the
same powers of review in respect of labour matters as would be
exercisable by the High Court in other matters.
For
reasons that follow, I am not persuaded that the appellant is correct
in its interpretation of section 89 of the Act.
Section
89 of the Act provides, in relevant part, as follows:
“89
Functions, powers and jurisdiction of Labour Court
(1)
The Labour Court shall exercise the following functions –
(a)
hearing and determining applications and appeals in terms of this Act
or any other enactment; and
(b)......
(c)......
(d)......
(d1)
exercise the same powers of review as would be exercisable by the
High Court in respect of labour matters.”
The
powers of review exercisable by the High Court are to be found in
sections 26 and 27 of the High Court Act, [Cap 7:06]. Those two
sections provide:
“26
Power to review proceedings
and
decisions
Subject
to this Act and any other law, the High Court shall have power,
jurisdiction and authority to review all proceedings and decisions of
all inferior courts of justice, tribunals and administrative
authorities within Zimbabwe.”
“27
Grounds for review
(1)
Subject to this Act and any other law, the grounds on which any
proceedings or decisions may be brought on review before the High
Court shall be –
(a)
Absence of jurisdiction on the part of the court, tribunal or
authority concerned;
(b)
Interest in the cause, bias, malice or corruption on the part of the
person presiding over the court or tribunal concerned or on the part
of the authority concerned, as the case may be;
(c)
Gross irregularity in the proceedings or the decision.
(2)
Nothing in subsection (1) shall affect any other law relating to the
review of proceedings or decisions of inferior courts, tribunals or
authorities.”
The
above provisions are in my view clear and unambiguous.
In
respect of labour matters, the Labour Court shall exercise the same
powers of review as does the High Court in other matters.
The
jurisdiction to exercise these powers of review is in addition, and
not subject, to the power the court has to hear and determine
applications in terms of the Act.
In
order for a review to be the subject of a hearing, such review must
be brought by way of application – see order 33, Rule 256 of the
High Court of Zimbabwe Rules, 1971.
Clearly
an application for review is not the type of application contemplated
in section 89(1)(a) of the Act.
The
suggestion by Mr De
Bourbon
that
the Labour Court has been given the same power of review as would be
exercisable by the High Court in respect of labour matters is, in my
considered view, incorrect and inconsistent with the provisions of
the Act.
I
say this for two reasons:
(i)
Firstly, the Act is clear that no court, other than the Labour Court,
shall have jurisdiction in the first instance, to hear and determine
any application, appeal or matter referred to in section 89(1) of the
Act – see section 89(6) of the Act.
In
various decisions, the High Court has interpreted this provision to
mean that the High Court has no jurisdiction in respect of the
matters referred to in section 89(1) of the Act. See for instance
Zimtrade
v Makaya
2005 (1) ZLR 427 (HC) at 429 and DHL
International (Pvt) Ltd v Madzikande
2010
(1) ZLR 201 (HC) at 203–204.
In
the circumstances the suggestion that the High Court would have any
review powers in respect of labour matters generally would be
untenable.
(ii)
Secondly it is clear that the interpretation given relies on a
superficial reading of the wording of section 89(1)(d). The section
should be understood to mean “the same powers of review in respect
of labour matters as would be exercisable by the High Court” or
alternatively “the same powers of review, as would be exercisable
by the High Court, in respect of labour matters”. Any other reading
of the paragraph would clearly result in an absurdity.
The
suggestion that the powers of review enjoyed by the Labour Court are
similar to those of the Supreme Court is equally incorrect.
Section
25 of the Supreme Court Act, [Cap7:06] provides:
“25
Review powers
(1)
Subject to this section, the Supreme Court and every judge of the
Supreme Court shall have the same power, jurisdiction and authority
as are vested in the High Court and judges of the High Court,
respectively, to review the proceedings and decisions of inferior
courts of justice, tribunals and administrative authorities.
(2)
The power, jurisdiction and authority conferred by subsection (1) may
be exercised whenever it comes to the notice of the Supreme Court or
a judge of the Supreme Court that an irregularity has occurred in any
proceedings or in the making of any decision notwithstanding that
such proceedings are, or such decision is, not the subject of an
appeal or application to the Supreme Court.
(3)
Nothing in this section shall be construed as conferring upon any
person any right to institute any review in the first instance before
the Supreme Court or a judge of the Supreme Court, and provision may
be made in rules of court, and a judge of the Supreme Court may give
directions, specifying that any class of review or any particular
review shall be instituted before or shall be referred or remitted to
the High Court for determination.”
It
is clear from the above section that whilst the Supreme Court may
exercise the same review jurisdiction, power and authority as the
High Court, no person has the right to institute any review in the
first instance before the Supreme Court.
In
other words the Supreme Court has the power of review over matters
coming before it for adjudication by way of appeal or whenever it
comes to the notice of the Court that an irregularity has occurred in
any proceedings or in the making of a decision and it is felt that
such an irregularity should not be allowed to stand.
The
fact that provision has been made for disputes to be first referred
to a labour officer is in my view irrelevant.
Review
proceedings are concerned with the manner in which a decision is
taken and not its merits. If for example a disciplinary authority had
no jurisdiction to hear a particular matter, or was biased or its
decision grossly unreasonable, the person aggrieved is empowered to
approach the Labour Court and apply for the review of the
proceedings.
The
fact that, instead of seeking a review, one can approach a labour
officer in terms of section 93 of the Act does not and cannot affect
the review power of the Labour Court provided the requirements for
such review are met.
A
decision by a Magistrate Court can be the subject of not only review
proceedings before the High Court but also appeal proceedings in the
normal way. The fact that there is an elaborate appeal procedure
would in no way suggest that the High Court has no review
jurisdiction in the first instance.
In
my view the Labour Court does have review jurisdiction to deal, in
the first instance, with matters involving issues of labour.
THE
APPLICATION TO FILE SUPPLEMENTARY HEADS OF ARGUMENT ON THE QUESTION
OF JURISDICTION
It
is common cause that after hearing submissions from the parties, the
court a
quo
reserved judgment in this matter. This was on 15 March 2010.
Exactly
eight (8) months later, i.e. on 15 November 2010, the appellant then
filed an application to file supplementary heads of argument in which
the main issue raised was whether the Labour Court had jurisdiction
to deal with the application for review.
It
is also common cause that the application was not set down for
argument and that on 7 March 2011 the respondent's legal
practitioners wrote to the Registrar of the Labour Court opposing the
application on the basis firstly that it was too late for the
appellant to seek to file supplementary heads at a time when judgment
was awaited and secondly that there was need for finality in
litigation.
The
court a
quo
then handed down its judgment on 21 March 2011.
In
dismissing the application to file further heads of argument
appellant, the court a
quo
remarked:
“In
my view this belated application should be dismissed for the simple
reason that labour disputes should be finalised expeditiously and to
allow a party to file further pleadings after the reservation of
judgment would defeat this principle. There must be finality to
litigation. …”
In
his submissions, Mr De
Bourbon
accepted
that, in general, once judgment has been reserved, the parties have
no right to file any further arguments.
However
the parties have the right to apply to file further heads of argument
and where the argument relates to a legal matter, especially one of
jurisdiction, a court should be slow to refuse to allow such further
argument unless to do so would clearly interfere with the workings of
the judicial officer concerned.
Whilst
the application was filed eight (8) months after judgment had been
reserved, it was made four (4) months before judgment was handed down
and clearly the matter had not been handled with any degree of
urgency.
In
his submissions the respondent argued that the appellant should have
diligently submitted any further argument within a reasonable time
and not eight (8) months after judgment had been reserved.
I
am inclined to agree with Mr De
Bourbon
that in general, once judgment has been reserved, the parties have no
right to file further heads of argument. However a party has the
right to apply to file such heads of argument. When that happens, as
it did in this case, it is incumbent upon the judicial officer seized
with the matter to hear both sides and thereafter to make a decision
on whether or not to allow such filing.
In
this case this was not done and it appears even the merits of the
application were not considered.
The
court a
quo
merely considered the extent of the delay and the need for finality
in litigation as sufficient grounds for the dismissal of the
application.
I
have no doubt in my mind that in doing so the court a
quo
erred.
As
Mr De
Bourbon
correctly
pointed out, where an issue of law, particularly one of jurisdiction,
is raised, a court should be slow to refuse to allow such further
argument unless the court is satisfied that such further argument
would not take the matter any further or that it amounts to an abuse
of court process.
It
is settled law that a question of law can be raised at any time, even
for the first time on appeal, as long as the point is covered in the
pleadings and its consideration involves no unfairness to the party
against whom it is directed. See Ahmid
v Manufacturing Industries (Pvt) Ltd
SC254/96 at p17 of the cyclostyled judgment and Muchakata
v Nertheburn Mine
1996 (1) ZLR 153 (S), 157A.
Once
the application to file further heads of argument was filed, the
court a
quo
should
have set the matter down and thereafter made a proper determination
of the request.
The
court did not do so and proceeded to consider its judgment without so
much as considering whether a valid point of law had been raised.
Only
in its judgment did it then give its reason for ignoring the
application, namely that it was belated and that there was need for
finality in litigation.
In
my view the court erred in its approach to the application.
The
rationale for allowing issues of law to be raised at any time is to
enable a court to have all the information, even at a very late
stage, so that it is enabled to make a proper decision.
The
issue raised was a serious one. If a court has no jurisdiction that
would be the end of the matter and any determination made thereafter
would be null and void.
That
the court a
quo
should have allowed the filing of further heads of argument is
buttressed by what has happened on appeal before this Court. The
issue of jurisdiction has been raised and argued by both parties,
notwithstanding that the court a
quo
had dismissed the request to file supplementary heads on this aspect.
Indeed
this is the first issue that this Court has had to determine in this
appeal.
On
the facts therefore I consider that personal inconvenience to the
court a
quo
was not sufficient ground to refuse to even hear the application.
This is a case where the court a
quo
should have allowed the appellant to file supplementary heads of
argument and allow the other side the opportunity to respond before
coming to a decision on the matter.
WHETHER
THE RIGHT TO TERMINATE IN TERMS OF SECTION 14(4) OF THE LABOUR ACT
WAS SUBJECT TO PROCEDURES
Two
issues arise in this regard. These are:
(i)
Firstly, whether a termination in terms of section 14(4) is subject
to substantive and procedural fairness; and
(ii)
Secondly, whether on the facts of this case the appellant complied
with the provisions of section 14(1) of the Act and, if so, whether
its invocation of the provisions of section 14(4) of the Act was in
the circumstances proper.
Section
14 of the Act provides:
“14
Sick leave
(1)
Unless more favourable conditions have been provided for in any
employment contract or in any enactment, sick leave shall be granted
in terms of this section to an employee who is prevented from
attending his duties because he is ill or injured or undergoes
medical treatment which was not occasioned by his failure to take
reasonable precautions.
(2)
During any one-year period of service of an employee an employer
shall, at the request of the employee supported by a certificate
signed by a registered medical practitioner, grant up to ninety days
sick leave on full pay.
(3)
If, during any one-year period of service of an employee, the
employee has used up the maximum period of sick leave on full pay, an
employer shall, at the request of the employee supported by a
certificate signed by a registered medical practitioner, grant a
further period of up to ninety days sick leave on half pay where, in
the opinion of the registered medical practitioner signing the
certificate, it is probable that the employee will be able to resume
duty after such further period of 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 and half pay: the employer may terminate the employment of the
employee concerned.
(5)
An employee who so wishes may be granted accrued vacation leave
instead of sick leave on half pay or without pay.”
It
is the appellant's contention that section 14(4) gives the employer
an absolute right to elect to terminate the employment of the
employee if -
(a)
the employee has taken more than ninety (90) days sick leave on full
pay in any one year; or
(b)
the employee has taken more than one hundred and eighty (180) days
sick leave on full pay and half pay in any one year period.
The
appellant further argues that the right to terminate is not subject
to compliance with any particular procedures.
The
respondent, on the other hand, argues that section 14(4) of the Act
does not give an employer an unfettered right to unilaterally and
summarily dismiss an employee and that fair labour standards and the
audi
alteram partem rule
still apply in this situation.
In
determining this issue, the court a
quo
relied
on the case of Mutukwa
v National Diary Co-operative Ltd
1996 (1) ZLR (1) ZLR 348 which held, inter
alia,
that an employer was entitled to terminate the contract of employment
on notice to the employee.
The
court was of the view that this principle was applicable to this
case.
The
reliance on the above case was clearly erroneous.
I
say so because section 14(b) of the then Labour Relations Act [Cap
28:01] provided that, unless more favourable conditions were provided
in the contract, where an employee was unable for a period exceeding
one month to fulfil the conditions of his employment, the employer
was entitled to terminate the contract on due notice, in which event
the employee was to be entitled to all benefits due to him up to the
date of such termination.
The
requirement to give notice was in terms of section 14(b) and was
mandatory.
It
is common cause that section 14(b) was repealed by Act 17/2002 which
substituted the section currently in existence and which is the
subject of this appeal.
The
current provision makes no provision for the giving of notice.
Considering
the circumstances as a whole, I would agree with Mr De
Bourbon
that there was a clear legislative shift and change of policy
regarding the termination of employment on the grounds of excessive
sick leave.
Section
14(4) has no express conditions attached to it except the requirement
as to the amount of sick leave which an employee can take in any one
year before the right to terminate can be exercised by an employer.
However,
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 no 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
the present case however it is apparent that there was correspondence
between the appellant and the respondent in which the appellant made
it clear that it would invoke the provisions of section 14(4) of the
Act.
The
respondent challenged the appellant's right to terminate his
employment in terms of section 14(4). The appellant then terminated
the employment with effect from 18 September 2009.
I
turn to deal with section 14(1) of the Act.
In
an ordinary employment contract, the termination of employment
effected on 18 September 2009 would have been the end of the
matter. However section 14(1) is qualified by the words:
“Unless
more favourable conditions have been provided for in an employment
contract… sick leave shall be granted in terms of this section…”
Clearly
the intention on the part of the legislature was to give the employer
and the employee the autonomy to agree on better terms and conditions
than are provided for in section 14.
In
the present case it is common cause that the appellant's policy and
procedure document was incorporated into the contract of employment
of the respondent.
The
relevant portion of the Group Policy and Procedures, Referenced P+P
No. 38, provides as follows:
“2
SICK LEAVE
2.1
All Employees:
2.1.1.
90 working days full pay in any one calendar year.
2.1.2.
90 working days half pay in any one calendar year.
2.1.3.
During this period of half pay, full employee and Company
contributions to the Pension Schemes must be continued.
|
ZIMASCO
GROUP POLICY AND PROCEDURES
|
DATE:
17.03.03
|
|
SUB:
LEAVE WITHOUT PAY/CASUAL/
|
P&P
NO.38
|
|
COMPASSIONATE/SICK/ACCIDENT
|
PAGE
2 OF 5
|
|
DISTRIBUTION:
“E”
|
SUPERSEDES;
27.06.95
|
|
|
|
|
