Sick leave contentious

of the Labour Act Chapter 28:01 stipulates the following concerning the granting of sick leave.
“1. Unless more favourable conditions have been provided for in any employment contract or in an 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 precaution.
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 90 days sick leave on full pay.
3. If during any one year period of service 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 90 days sick leave on half pay. This is where, in the opinion of the medical practitioner signing the certificate, it is probable that the employee will be able to resume duty after such further period of sick leave.”
An example of an employer going against the rules concerning sick leave is that of Tiger Reef Mine, which used to employ Mr Mahamad Chuma as a plant operator.
He had worked for the company for 20 years when he was discharged in 2008 while he was admitted in hospital. The company had granted Mr Chuma vacation and he travelled to his rural home in Gokwe.
Whilst he was on leave, he fell ill and went to a private doctor where he was advised to do light duty.
His illness continued after the leave and he notified his employer.
When Mr Chuma was finally fit about a month later, he reported for duty only to be told that he had already been dismissed.
After complaining about unfair labour practice, Tiger Reef then offered him to sign a new contract of employment, which he refused.
Mr Tshuma has since taken the case up with the NEC for Mining in Bulawayo.
Mandalima Phiri worked for Elvington Gold Mine – a subsidiary of the Zimbabwe Mining Development Corporation when he was retired on medical grounds.
This was in terms of the recommendation of a registered medical practitioner, who carried out the examination on September 22, 2009.
During the period January 10, 2009 to September 22, 2009, Phiri was granted a total of 114 days sick leave.
After termination of employment on medical grounds, Phiri went on to claim his benefits from the National Social Security Authority, but the claim was unfortunately not successful.
The regional manager for NSSA in a letter dated January 8, 2010 advised Phiri that the recommendation of the NSSA doctor was that he was still fit for duty.
After the failure of his claim, Phiri made a claim of unfair labour practice with his former employer.
Conciliation failed to resolve the matter and it was referred to arbitration.
The issue for arbitration was: “Alleged unfair labour practice by the employer – unfair termination of employment based on medical grounds.”
The Arbitrator who determined the matter approached it from the point of view that Phiri joined Elvington Gold Mine in July 1995.
This – according to the learned Arbitrator – meant that Phiri celebrated his anniversary every July.
Whatever leave days had therefore to be calculated from July each year and not from January.
For that reason, the Arbitrator reasoned that of the 114 days, which were the sum total of Phiri’s sick leave days between January 2009 and September 2009, the bulk fell before July 2009.
This – according to the learned Arbitrator – meant that Phiri used only 36 days between July 2009 and September 2009.
According to this reasoning, sick leave days, which fell before July 2009, fell into Phiri’s previous year.
However, this reasoning is contrary to both the dictates of the Labour Act and rules of interpretation.
The Act provides that: “If during any one year period of service of an employee…”
Now, “any one year” in terms of the rules of interpretation means one calendar year. One-calendar year runs from January to December.
That is the ordinary meaning of a calendar year. If at any workplace the employer calculated the calendar year according to when each employee celebrated their anniversary, the administration of workplaces would not be easy to run.
Each employee would have his or her own New Year while the workplace had its own.
It is believable that when Phiri took a total of 114 sick days in one year, it was between January and December that year.
Thus, Phiri exhausted in excess of 90 days sick leave during one calendar year.
The Act provides for an .employee to make an application for a further 90 days on half pay.
A certificate from a registered medical practitioner should support that application.
The application is done “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.”
Phiri did not take that option. Had he made an application as directed by the Act, and then the employer declined, that would have amounted to a failure by the employer to comply with “any determination or direction, which is binding upon him in terms of this Act.”
The learned Arbitrator therefore fell into error when he concluded that Phiri had absented himself for 36 days only between January and September 2009 and not for 114 days.
It is also of respectful view that once Elvington Gold Mine had terminated Phiri’s employ on medical grounds, the employer/employee relationship between the parties ceased to exist.
It is therefore agreeable that Elvington did not commit an unfair labour practice against Phiri as stipulated in the Act.
At the time that the doctor’s certificate was submitted, no other finding contrary to that finding was made.
There was therefore no medical evidence to controvert the doctor’s findings. His finding was that Phiri was at September 22, 2009 medically not fit to continue performing the duties, which he used to perform.
The doctor proceeded to make his recommendation. This is the recommendation, which the employer followed.
This cannot be referred to as an unfair labour practice as envisaged by the Act.
It is in view of the foregoing that Labour Court president Euna Makamure found merit in the appeal by Elvington Gold Mine and set aside the determination by the Arbitrator.
An example of an employer going against the rules concerning sick leave is that of Tiger Reef Mine, which used to employ Mr Mahamad Chuma as a plant operator.
He had worked for the company for 20 years when he was discharged in 2008 while he was admitted in hospital.
The company had granted Mr Chuma vacation and he travelled to his rural home in Gokwe.
Whilst he was on leave, he fell ill and went to a private doctor where he was advised to do light duty.
His illness continued after the leave and he notified his employer.
When Mr Chuma was finally fit about a month later, he reported for duty only to be told that he had already been dismissed.
After complaining about unfair labour practice, Tiger Reef then offered him to sign a new contract of employment, which he refused.
Mr Tshuma has since taken the case up with the NEC for Mining in Bulawayo