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 s 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 s 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 s 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 s 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 s 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 s 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 s 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 s 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 s 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 s 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 ss 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 s 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. 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 s 89(1) of the Act – see s 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 s
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. Secondly it is clear that the
interpretation given relies on a superficial reading of the wording of
s 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 s 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 SC
254/96 at p 17 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 firstly, whether a termination
in terms of s 14(4) is subject to substantive and procedural fairness and,
secondly, whether on the facts of this case the appellant complied with the
provisions of s 14(1) of the Act and, if so, whether its invocation of the
provisions of s 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 s 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 s 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 s
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 s 14(b) and was mandatory. It is common cause that s 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 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 no 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.
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 s 14(4) of the Act. The respondent
challenged the appellant's right to terminate his employment in terms of s
14(4). The appellant then terminated the employment with effect from 18
September 2009.
I turn to deal with s 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 s 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 s 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
|
|
|
|
|
2.1.4.
If, during the absence of an employee on sick leave at half pay, it
is determined that he/she should be retired on the grounds of being permanently
disabled, from illness, immediate steps must be taken to secure early
retirement or to have the employee medically boarded.
2.1.5.
…
2.1.6. …
2.1.7.
…
2.1.8.
…
|
ZIMASCO
GROUP POLICY AND PROCEDURES
|
DATE:
17.03.03
|
|
SUB: LEAVE
WITHOUT PAY/CASUAL/
|
P&P
NO.38
|
|
COMPASSIONATE/SICK/ACCIDENT
|
PAGE 3 OF
5
|
|
DISTRIBUTION:
“E”
|
SUPERSEDES;
27.06.95
|
|
|
|
|
3.
SICK LEAVE NECESSITATED BY INJURY
3.1
Arising from Accident at Work
1.1.1.
Those employees covered by workers Compensation Insurance
Full
pay for period of absence, recovered from Workers Compensation Department.
1.1.2.
Those employees NOT covered by Workers Compensation Insurance
Full
pay for the period of absence, provided that the cause of the accident which
led to the injury is not attributable to the negligence of the employee.
3.2
Arising from Accident
The
conditions laid down in sub-paragraph headed “sick leave, shall apply.”
The words “unless more favourable conditions have been provided for in a
contract of employment” are wide and unambiguous. In other words, where
more favourable conditions have been agreed to, those conditions will take
precedence over the periods provided for in s 14(4) and will need to be
complied with before any termination is contemplated by the employer.
Paragraph 2.1.4 in particular provides that if it is determined that an
employee should be retired on the grounds of being permanently disabled, from
illness, immediate steps must be taken to secure early retirement or to have
the employee medically boarded. This provision also applies to sick leave
necessitated by injury arising from an accident.
It is common cause in this case that the provisions of para 2.1.4. of the Group
Policy and Procedures were not complied with. In the circumstances the
appellant could not proceed as if that provision did not exist. It was a
provision that the appellant itself had inserted into the Group Policy and
Procedures and which had been incorporated into the contract of
employment. That provision certainly provided more favourable terms than
would normally be the case. The appellant was therefore under obligation
to look at the question of early retirement or medical boarding.
In the circumstances the decision by the appellant to terminate the appellant's
contract of employment without reference to its own policy and procedures was
irregular.
The finding that there was an irregularity in the termination of the
respondents' contract of employment cannot therefore be impugned.
In the result, the following order is made:
(1)
The appeal is allowed only to the extent that para 3 of the order of the court a
quo dismissing the application to file supplementary heads of argument is
deleted.
(2)
The appellant shall pay the costs of appeal.
GOWORA
JA:
I agree
OMERJEE
AJA: I agree
Gill,
Godlonton & Gerrans,
appellant's legal practitioners
Chihambakwe, Mutizwa & Partners, respondent's legal practitioners
