Termination of employment contract due to ill-health can be a potential source of dispute in employment relationship if not properly handled. Employment relationship is reciprocal; the employee part must provide labour while the employer part has the obligation to pay for the labour. According to Mucheche (2014), the umbilical code between an employer and an employee is a contract of employment whose evolution is embedded in the common law. When the other part fails to fulfil its obligation the other part may terminate the employment relationship and the contract will not subsist. However Incapacitation due to ill-health can befall anyone and absence from work becomes inevitable. Where such mishap strikes, the legal provisions that govern sick leave must be adhered to.
Section 14 of the Labour Act provides that:
(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
(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 provisions of the Act supra allows an employee to be on seek leave for a period of up to 180 days in a period of 12 months after which the employer is legally allowed to terminate the contract. While it appears to be harsh, the wording of section 14(4) is very clear and does not give any other provision like notice or engagement before termination of employment due to ill health.
In the case of Tandekile Zulu v ZB Financial Holdings (private) Limited the supreme court ruled that the employer had unfettered right to terminate employment contract under section 14(4). Once an employee exceeds the maximum acceptable sick leave the employer is allowed to invoke section 14(4) of the Act.
In the case of Girjac Services Private Limited v Mudzingwa 1991 (1) ZLR 243 SC at p264 the court said “none the less, the fact that the employee is incapacitated by a cause beyond his control- by an act of God does not deprive the employer of the right to terminate the contract….” It is therefore clear that the employer has got the discretion to terminate the contract without giving any notice where an employee has gone for 180 days without providing services due to ill-health.
While the Act gives the employer the right to terminate a contract of employment in terms of section 14(4), it must be noted that those governed by Public Service Act are excluded from the provisions of the Labour Act. In terms SI 1 of 2000 (Public Service Regulations), a medical board can recommend retirement on medical grounds where an employee becomes incapacitated due to ill health.
Be that as it may the Act does not preclude employers who offer favourable conditions than those provided on section 14. Section 14(1) supra gives employers room to prescribe favourable terms and conditions of termination of employment due to ill health in form of policies and employment contracts.
Simbarashe Gobvu is an experienced La¬bour Practitioner and an Independent Arbitrator who write in his own capac¬ity. He can be contact¬ed at [email protected]/ Phone 0773215904 or 0713008767 https://masvingomirror.com