Thandekile Zulu v ZB Financial Holdings (Private) Limited

The appellant was employed as a clerk by the respondent from 2 September 1991 to 31 October 2009. In January 2009, she fell ill and was granted paid sick leave from 22 January 2009 to 8 February 2009, which was extended by 15 days to 24 February 2009. She then applied for indefinite sick leave from 24 February 2009 onwards. By August 2009, she had not reported to work and produced a medical certificate advising bed rest. By October 2009, she still had not returned to work and was unsure when she would return. As at 30 October 2009, the appellant's cumulative period of absence was 251 days. By letter dated 2 December 2009, the respondent terminated the appellant's employment with effect from 31 October 2009 in terms of section 14(4) of the Labour Act. The appellant challenged the dismissal as unfair. A labour officer issued a certificate of no settlement and referred it for arbitration. The arbitrator held that the dismissal was lawful under section 14(4). The appellant appealed to the Labour Court, which interpreted "one-year period" to mean a calendar year and dismissed the appeal. The appellant then appealed to the Supreme Court.

• What is the correct interpretation of the phrase 'any one-year period of service' under section 14(4) of the Labour Act [Chapter 28:01]?
• Does section 14(4) of the Labour Act grant an employer an unfettered right to terminate employment upon expiry of 180 sick leave days without consultation or notice to the employee?
• Whether the employer was required to comply with the audi alteram partem principle before terminating employment under section 14(4) of the Labour Act

The appeal was dismissed with each party bearing its own costs. While the appellant was partially successful in upsetting the Labour Court's interpretation of "one-year period," this success had no impact on the overall outcome of the appeal and was only considered in assessing costs.

The binding legal principles established are: (1) Under section 14(4) of the Labour Act, "any one-year period of service" means a period of twelve months calculated from the date on which the employee fell sick, in accordance with section 33(6)(d) of the Interpretation Act which provides that a reference to a year without qualification shall be construed as a period of twelve months. (2) Section 14(4) of the Labour Act does not require an employer to give notice to or consult with an employee before terminating employment on grounds that the employee has exceeded the statutory sick leave period of 180 days. The section grants employers the discretion to terminate employment in such circumstances without imposing procedural obligations beyond what is expressly stated in the statute. (3) Courts should not read into or alter clear statutory language by imposing requirements not expressly stated or necessarily implied, as this would violate established principles of statutory interpretation.

The Court observed that the remarks by Garwe JA in Zimasco v Maynard Marikano SC 6/14 suggesting that employers must notify employees and comply with the audi alteram partem principle before terminating under section 14(4) were obiter dicta, not the ratio decidendi of that case. The Court also noted that while requiring notice might be laudable, it would import uncertainties into the clear provisions of the Act, such as whether notice should be given before or after expiry of sick leave days and how to treat responses from employees. The Court commented that any miscalculation of leave periods can be dealt with through a challenge of the dismissal. The Court also observed that the appellant's conduct in making no effort to communicate with the employer about her intention to return to work or request further leave amounted to repudiation of the employment contract, making it unreasonable to expect the employer to continue making enquiries.

This case establishes the authoritative interpretation of section 14(4) of the Labour Act regarding the calculation of sick leave periods. It clarifies that "one-year period of service" means twelve months from the date the employee fell sick, not a calendar year or anniversary of employment. The case also confirms that employers have a statutory right to terminate employment under section 14(4) without a mandatory requirement to give prior notice or comply with the audi alteram partem principle, contrary to obiter remarks in previous cases. This has significant implications for employment terminations based on incapacity due to prolonged illness in Zimbabwean labour law. The judgment reinforces the principle of statutory interpretation that courts should not read additional requirements into clear legislative provisions unless expressly stated or necessary by implication.