The law in Zimbabwe provides for conditions under which employees can take sick leave. The provisions take into consideration the fact that at some point in their working lives employees may fall sick or get injured and will need time to seek medical treatment, recover before they can come back to work. Section 14 (1) of the Labour Act provides reasons through which an individual can be granted sick leave and it states “…..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 precautions.” The Act provides for an aggregate of 180 days sick leave.

Section 14 of the Labour Act highlights the conditions under which employees can proceed on sick leave during their tenure of employment. The statement- unless more favorable conditions have been provided quoted from subsection (1) means the employer and employee can agree for better conditions other than the minimum requirements provided for in the Labour Act, and whatever provision the employer seeks to use in the treatment of sick leave should not be subordinate to the provisions provided for in section 14 of the Labour Act. More so it is important to note that If an employer provides for better sick leave terms than the statutory minimum in the Labour Act, the employer must observe those terms of which failure to observe own provisions by an employer and opting for less favorable terms make such terns null and void.(Labour Aspects 2015)

The section states that an employee can enjoy 90 days sick leave during a one year period of service, at their request and if they produce a certificate signed by a registered medical practitioner. One year period of service was quantified in the Thandekile Zulu vs ZB Financial Holdings Pvt Ltd(SC 48/2018) to mean any period of 12 months from the date the employee fell sick. The employer is also entitled to seek second opinion in order to verify the medical certificate an employee may bring before granting sick leave, other than that as long as the employee produces a sick note certified by a registered medical practitioner the employer has no option but to grant the sick leave.

A further 90 days sick leave on half pay can be provided for in the event that the employee does not recover in the first 90 days. As section 14 highlights, this can only be granted at the request of the employee and if they produce a certificate signed by a registered medical practitioner. However the medical practitioner can only sign the certificate if they see that there is a probability that the employee will be able to resume their duties after the extended period of sick leave.

At the exhaustion of an aggregate of 180 days leave and the employee fails to recover, the employer may terminate the employee’s contract of employment. The only exception to this right for the employer, would be unless if favorable conditions have been provided for which may involve extending the sick leave beyond the 180 days given as minimum requirements in the Labour Act.

Whilst I decided to start by giving a brief outline of section 14 , this article seeks to discuss some of the most frequently asked questions pertaining to sick leave which include can sick leave be substituted with annual leave?, if so what does the Law say?, what are the implications to both the employer and the employee, and how should it be treated? As highlighted in the previous paragraphs upon the exhaustion of 90 days sick leave on full pay by an employee and he/she has not fully recovered to resume duties, the employee can proceed on a further 90 days half pay if they are supported by a medical certificate and if the medical practitioner sees that there is a probability that the employee would be able to resume duties after the leave. However most employees who find themselves in this predicament, dread proceeding on half pay as they fear that they may not be able to satisfy their family obligations and worse still medical expenses on half pay, some then opt to take their annual leave instead of the sick leave half pay. This brings us to the question, can employees substitute sick leave with annual/vacation leave?

The Labour Act through section 14 subsection 5 provides that an employee who so wishes may be granted accrued vacation leave instead of sick leave on half pay or without pay. This means that an employee can request to proceed on accrued vacation leave instead of proceeding on sick leave half pay or sick leave no pay. The wording in the provision makes it clear that this can only happen at the request of the employee and if the employer approves.

However now that it is clear that an employee can replace sick leave half pay or no pay with vacation/annual leave days how then should the employer treat the issue? It is critical to note that the provision in section 14 subsection 5 takes into considerations the provisions of the other subsections in the same section. My view is that unless if favorable conditions have been provided for an employer can only agree to the employee substituting sick leave with annual leave, if they are presented with a signed medical certificate from a registered medical practitioner, stating the probability of the employee being able to resume duty after the given leave.

Another question that human resources practitioners and employees across Zimbabwe may have had is that what happens when the employee takes the annual leave for argument’s sake amounting to 90 days and upon completion of the days they are still not well, do they now proceed on 90 days half pay or the employer may go ahead and terminate their contract? My argument has always been that taking note of subsection 5, if an employee opts for annual leave instead of the 90 days half pay, it means they would have forfeited their right to proceed on 90 days half pay as provided for under section 14. As such upon completion of the 90 days annual leave and they are still not well, the employer may terminate the employment contract, unless if of course favorable conditions have been provided for.

Human resources practitioners have always argued that section 14 of the Labour Act states that in any one year period of service an employee is supposed to enjoy a total of 180 days sick leave and as such if an employee substitutes sick leave half pay with annual leave, upon expiration of the annual leave the employee will start on the half pay. My view is different from this one, sorely because of the 2 quantifying words in Section 14 (5) which are “…instead of…” in full subsection 14 (5) states that An employee who so wishes may be granted accrued vacation leave instead of sick leave on half pay or without pay. My view is that it would be a miscarriage of justice to impose an obligation on the employer to say, an employee has requested to take annual leave days instead of sick leave half pay and on the end of the annual leave and the employee is still not well they should proceed on a further 90 days on half pay. In its literal meaning instead of simply means rather than, and in light of section 14 (5) of the Labour act an employee who opts for annual leave instead of sick leave pay cannot proceed on half pay if they exhaust their 90 days annual leave and they are still not well.

On the issue of substituting sick leave with annual leave a realistic situation that may arise is what would happen when the employee who would have been granted the annual leave days and they do not amount to 90 days, do they take the balance on half pay or what? My view is that unless if favorable conditions have been provided for the employee should take the balance on half pay.

However after all has been said and done in some instances termination due to incapacity becomes inevitable. If an employee exhausts all the provided sick leave days and they are still not well and the employer resorts to terminating the employee’s contract of employment, it is important for the employer to notify the employee on the decision to terminate. This is made clear in the case of Zimasco Pvt Ltd vr Marikano (SC 130/11). The case law highlighted that for termination of employment in terms of section 14(4) employers must observe the “Audi Alteram Principle”. The judge held that an employer is obliged to notify an employee that he/she has used the maximum allowable sick leave and his employment would be terminated by a certain date should he/she fail to return to work. (Labour Aspects 2015). However in the case of Thandekile Zulu v ZB Financial Holdings ( SC 48/2018) on the same the learned judged highlighted that “ I am of the view that the provision does not take away the employer’s unfettered discretion to terminate employment due to incapacity. It would be a gross miscarriage of justice to impose an onerous obligation on the employer where the clear language of the statute does not provide for such an obligation’’. Whilst the latter case sort of exculpates the employer from notifying on intent to terminate on incapacity, human resource practitioners would agree with me that it would be good practice to notify the employee of an intention to terminate the contract of employment due to incapacity. These are my two cents. Food for thought?

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 a human resources practitioner 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.