When an employee commits an offense at work, the offense should be investigated and appropriate action taken as prescribed by the company’s code of conduct. In Zimbabwe a company can use its own registered code of conduct and if it does not have it can use the National Code of Conduct (SI 15 of 2006). Where an offense has been committed the matter should be handled expeditiously and whilst it is fresh, the Labour Act (Chapter 28:01) provides for the just, effective and expeditious resolution of disputes. Where an employee proceeds on leave and it is latter found out that they committed an offense prior to commencement of leave, would it be proper for the organisation to recall the employee and institute disciplinary proceedings? The answer is YES and NO as it depends on the type of leave that an employee would have been granted. The purpose of this article is to explain whether employees can be recalled from any form of leave so that disciplinary action can be taken against them. The Labour Act (Chapter 28:01) provides for 4 types of leave that an employee can be granted these are annual leave, sick leave, special leave and maternity leave. I am going to look at these types of leave and make a case by case analysis.
Annual Leave/ Vacation Leave
Annual leave is provided for in section 14 A of the Labour Act. The section states that an employee is granted accumulated leave days after completing one year of service with an employer and the maximum number of paid vacation days that an employee can accumulate is 90 days. In the event that an employee wants to proceed on leave but does not have accumulated leave days the employee may be granted unpaid leave days. The employer decides when vacation leave can be taken by an employee. In this regard in the event that an employee committed an offense before proceeding on leave, it is my view that the employer can recall the employee from leave to facilitate investigations and carry out disciplinary proceedings if need be. This is because they are no complexities which can arise if an employee is recalled from annual leave, since it is meant mainly for resting.
Sick Leave
Sick leave is provided for under section 14 of the Labor Act (28:01). The Section states that sick leave is granted to an employee who is not able to carry out day to day work because of illness, injuries or medical treatment (not caused by the employee’s lack of exercising due precaution). It is prudent to note that sick leave is only granted by a registered medical practitioner. An employee may proceed on 90 days of sick leave in a year on full pay (before the employer can consider medical termination). However, after using up the allowed maximum 90 aggregated days in a year, an employer may terminate an employee’s employment if the medical doctor indicates that employee’s condition is such that he/she cannot be fit for duty again. An employee who has used the 90 days on full pay may enjoy a further 90 days on half salary if his/her attending medical practitioner avails a certificate indicating that the employee may be fit for duty after the 90 days on half pay. Given that a brief overview of what sick leave has been given, the question is can an employer recall an employee who is on sick leave to come back so that disciplinary proceedings can be instituted. The answer is NO ,an employer cannot recall an employee from sick leave given that the employee would not be fit to carry out his/her duties and as such cannot be fit to take part in disciplinary proceedings. In this instance it would be best to let the employee recuperate, come back to work and then initiate the disciplinary proceedings.
Maternity Leave
Like sick Leave, maternity Leave stem from an employee’s unfitness to carry out her normal day to day duties. According to the Labour Act (Chapter 28:01) section 18 maternity leave is granted to a female employee on production of a certificate signed by a registered medical practitioner or state registered nurse certifying that she is pregnant. The female employee may proceed on maternity leave not earlier than the forty-fifth day and not later than the twenty-first day prior to the expected date of delivery. The maximum number of days that one can proceed on maternity leave is 98 days. For the duration of maternity leave a female employee will be considered unfit to carry out her normal day to day duties. The unfitness to carry out normal duties would have been certified by a medical practitioner and in this regard the employee can only come back to work at the lapse of the days granted by the registered medical doctor. The employer would thus be forced to shelve the disciplinary proceedings until the female employee comes back to work.
Special Leave
Special leave as the name suggests is a special type leave that is given under special circumstances. According to Section 14 B of the Labour Act special leave is granted by an employer to an employee —
(a) who is required to be absent from duty on the instructions of a
medical practitioner because of contact with an infectious disease;
(b) who is subpoenaed to attend any court in Zimbabwe as a witness;
© who is required to attend as a delegate or office-bearer at any meeting
of a registered trade union representing employees within the
undertaking or industry in which the employee is employed;
(d) who is detained for questioning by the police;
(e) on the death of a spouse, parent, child or legal dependant;
(f) on any justifiable compassionate ground.
The number of days that an employee can be away on special leave is 12 days. Given that the maximum number of days that one can proceed on special leave is 12, the employer can wait for the employee to come back from leave and then start the disciplinary proceedings. The argument here is that 12 days are not too long to wait.
Study Leave
Study leave is a type of leave that will be granted to employees that will be studying programs aimed at acquiring additional qualifications for a given position. For most organizations in Zimbabwe study leave is between 10 and 12 days. The context for study leave includes time to attend lectures, study time and time to write examinations. Like special leave, study leave days are few and an employer can wait for the employee to come back to work before instituting the disciplinary action. Furthermore, it may be difficult to recall an employee who is attending examinations in order to institute the disciplinary action.
So can an employee be recalled from leave so that they go through disciplinary proceedings? The answer is yes and no as it depends on the type of leave that an employee would have been granted. Complexities arise in recalling an employee from sick leave, maternity leave, special leave and study leave.Food for thought.
Ref: The Labour Act Chapter (28:01)
Disclaimer: This is the author’s individual opinion and as such this information may not be taken as substitute for legal advice, please consult your legal advisors before adopting the principles outlined here.
About the author: Benjamin B Makumbe is an award winning human resources practitioner(Upcoming HR Practitioner of the year 2019 IPMZ –2nd runner up) who writes in his personal capacity, for feedback you can contact him on email at benjaminbmakumbe@gmail.com or on WhatsApp/calls at +263779793407, or follow him on medium for more articles user name is Benjamin Brian Makumbe
