adminworker who had taken more than the required sick leave days within a year.
The mine – which is a subsidiary of the Zimbabwe Mining Development Corporation – employed Mandalina Phiri as a mineral sampler in July 1995. He fell sick from June 2008 and was absent from duty on different occasions up to September 2009.
As a result of such sick absence, the mine referred Phiri for a medical examination to determine his suitability for continued employment.
The examination concluded that his condition was permanent and that Phiri would not be fit for employment. Acting on the strength of the results, Elvington Mine terminated his employment on account of ill health on September 21, 2009. Phiri sought to claim his pension benefits from the National Social Security Authority, whose doctor examined him in January 2010 and concluded that he was fit for duty.
He challenged his dismissal and referred the matter to a labour officer who failed to conciliate.
The matter was then taken for arbitration to determine whether Phiri was unfairly dismissed on medical grounds. The arbitrator ordered Phiri’s reinstatement and the employer filed for stay of execution against the order at the Labour Court.
Evidence brought before the court was that sick leave was governed by Section 14 of the Labour Act.
Section 14 (2) says: “During any one year period of service of an employee, a employer shall at the request of the employee – grant up to 90 days sick leave on full pay.”
Labour Court president Ms Loice Matanda-Moyo said the provision provided for any one-year period.
“It refers to any period which when calculated adds up to 90 days. In this scenario, the one-year runs from June 16, 2008 to June 16, 2009. The purpose of the Section is to ensure that the employee renders service to his or her employer,” said Ms Matanda-Moyo.
She pointed out that on the other hand it recognises the rights of the employee to go on sick leave and not to be fired from employment. Ms Matanda-Moyo said from the facts of the case, Phiri had been away before the employer sent him for medical examination.
“The applicant acted on the doctor’s findings in terminating the employment. The question is whether the subsequent examination nullifies the first? I am satisfied that applicant has an arguable case on appeal,” said Ms Matanda-Moyo.
She pointed out that Section 14 (3) requires the employee to request a further 90 days sick leave on half pay. There was no evidence that Phiri requested an extension of sick leave on half pay in terms of Section 14 (3). Ms Matanda-Moyo said the mine had managed to show that it had prospects of success on appeal, and granted the application for stay of execution.
Online Reporter