Zimasco Private Limited v Maynard Farai Marikano

The respondent was employed by the appellant as a Medical Officer in 1995 and rose to become Health Services Manager. The appellant's policies and procedures were incorporated into his employment contract. Between February and March 2009, the respondent was involved in a serious road accident while on the appellant's business, suffering serious spinal injuries. He was unable to work from 11 March 2009 and was granted 90 days sick leave on full pay. After expiration of this period, he took more sick leave. On 18 September 2009, the appellant terminated the respondent's contract of employment pursuant to section 14(4) of the Labour Act, on the basis that he had exceeded the maximum sick leave permissible in a single year. The respondent filed an application for review with the Labour Court on 9 October 2009, alleging the termination was unlawful as the appellant had not followed proper procedural steps. Eight months after the Labour Court reserved judgment, the appellant filed an application to file supplementary heads of argument challenging the Labour Court's jurisdiction to hear the review at first instance.

• Whether the Labour Court had jurisdiction to entertain the respondent's application for review at first instance
• Whether the Labour Court erred in declining to consider the jurisdictional issue raised in the application to file supplementary heads of argument
• Whether the right to terminate employment under section 14(4) of the Labour Act is subject to procedural requirements
• Whether the employer was obliged to give the employee the right to be heard before terminating employment
• Whether the employer was obliged to comply with medical boarding procedures or offer early retirement as per the employment contract before termination

The appeal was allowed only to the extent that paragraph 3 of the Labour Court order dismissing the application to file supplementary heads of argument was deleted. The appellant was ordered to pay the costs of appeal.

The binding legal principles established are: (1) The Labour Court has review jurisdiction at first instance in labour matters by virtue of section 89(1)(d1) of the Labour Act, exercising the same review powers as the High Court exercises in other matters. (2) A court should not refuse to hear arguments on questions of law, particularly jurisdictional issues, merely on grounds of delay, unless doing so would constitute an abuse of process or be clearly unfair. (3) Although section 14(4) of the Labour Act permits termination of employment after excessive sick leave without express procedural requirements, the audi alteram partem principle still applies - an employer must give notice to the employee of the intention to terminate and provide an opportunity to respond. (4) Where an employment contract provides 'more favourable conditions' than those in section 14 of the Labour Act (as contemplated by section 14(1)), those contractual terms take precedence and must be complied with before termination under section 14(4) can be effected. An employer cannot invoke statutory termination rights while ignoring more favourable contractual terms it has itself created.

The Court observed that there was a clear legislative shift and change of policy regarding termination of employment on grounds of excessive sick leave when the Labour Relations Act was amended by Act 17/2002, particularly the removal of the express requirement to give notice that existed in the former section 14(b). However, the Court noted that despite this legislative change, the far-reaching consequences of terminating employment mean that fundamental principles of natural justice cannot be completely displaced. The Court also commented that it would not be proper for an employer to invoke section 14(4) and terminate employment without any notice to the employee, emphasizing that the audi alteram partem principle must be respected.

This case is significant in Zimbabwean labour law for several reasons: (1) It clarifies that the Labour Court has original review jurisdiction in labour matters, independent of the dispute resolution procedures involving labour officers. (2) It establishes that questions of law, particularly jurisdictional issues, should not be dismissed merely on grounds of delay when raised after judgment is reserved. (3) It confirms that even when statutory provisions appear to grant absolute rights to employers (such as section 14(4) termination rights), these remain subject to principles of natural justice, particularly the audi alteram partem rule. (4) It emphasizes that where employment contracts contain more favourable terms than statutory minimums (as contemplated by section 14(1)), employers must comply with those contractual terms before exercising statutory termination rights. (5) It demonstrates the courts' approach to interpreting employment contracts in favour of fair labour standards and procedural fairness.