ZIMASCO (PVT) LTD V Marikano (Civil Appeal SC 130 of 2011 SC 6 of 2014) 2014 ZWSC 6 (12 January 2014)
ZIMASCO (PVT) LTD V Marikano (Civil Appeal SC 130 of 2011 SC 6 of 2014) 2014 ZWSC 6 (12 January 2014)
GARWE JA: This is an appeal against the judgment of the Labour Court
setting aside the decision of the appellant to terminate the respondent’s contract of
The facts of this case are largely common cause and are these. The respondent
was employed by the appellant as a Medical Officer in 1995. He rose through the ranks to
become the Health Services Manager. In terms of his letter of appointment, the appellant’s
policies and procedures were incorporated into his employment contract. On a date that is
unclear on the papers, but between February and March 2009, the respondent was involved in
a serious road accident, whilst about the appellant’s business. The respondent suffered
serious injuries to his spine as a result of which he was unable to attend to his official duties
from 11 March 2009. The respondent was allowed to go on sick leave on full pay for a
period of ninety (90) days. At the expiration of that period, the respondent was still unable to
resume his duties and took more sick leave. On 7 September 2009, the appellant’s services
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director, a Mr Zvaipa, wrote to the respondent directing him to furnish a copy of his doctor’s
opinion, failure of which his remuneration and other benefits were to be suspended.
Following further correspondence exchanged between the two, the respondent made it clear
that he remained in the employ of the appellant until such time as his contract was lawfully
terminated. On 18 September 2009 the appellant then wrote to the respondent advising that
since he had exceeded the maximum sick leave permissible in a single year, his contract of
employment was being terminated forthwith in terms of s 14 {4} of the Labour Act, [Cap
28:01](“the Act”).
Following this development the appellant then filed an application for review
with the Labour Court on 9 October 2009. In the application the respondent alleged that the
termination was unlawful as the appellant had not followed the procedural steps required at
grounds. It appears that on the same date the respondent filed what purported to be a notice
of appeal against the decision to dismiss him. It is apparent however that in both cases the
respondent sought an order setting aside the decision to terminate his contract of
employment.
The Labour Court treated the matter as an application for review. After hearing
submissions from both parties, the court then reserved its judgment on 15 March 2010. On
15 November 2010, eight (8) months later, the appellant then filed an application for leave to
file supplementary heads of argument. The supplementary heads of argument sought to raise
the issue whether or not the Labour Court had jurisdiction to entertain an application for
review in the first instance. The application was opposed by way of a letter to the Registrar.
No formal opposing papers were filed. The Labour Court dealt with the request as part of its
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judgment. The court was of the view that there should be finality in litigation and that to
allow a party to file heads of argument after judgment had been reserved would defeat this
principle. The Court therefore dismissed the application to file supplementary heads of
argument. The court further reached the conclusion that an employer does not have the
of the Act and that, regard being had to the purpose of the Act, namely the promotion of fair
labour standards, the employer was under obligation to conform to the requirements of
substantive and procedural fairness and that failure to give notice to an employee of an
irregular. The court further found that since the respondent’s contract of employment
embodied other terms applicable in the event of sickness, the appellant should have fully
related to those terms and given the respondent the option either of early retirement or being
medical boarded. The court concluded that as this had not been done there had been
procedural irregularities and consequently set aside the decision to terminate the contract of
employment of the respondent. It is against that order that the appellant has appealed to this
Court.
Both parties to this appeal are agreed that the appeal raises three (3) issues for
(a) Whether or not the Labour Court had jurisdiction to entertain the respondent’s
application for review at first instance.
(b) Whether the Labour Court erred as a matter of law in declining to consider the
issue of jurisdiction raised in the application to allow the filing of
supplementary heads of argument.
(c) Whether the Labour Court was correct in holding, as it did, that the right to
termination in terms of s 14 (4) was subject to procedure and that any
irregularity in those procedures entitled the Labour Court to set aside the
termination of the contract of employment. In particular whether the appellant
was obliged to give the respondent the right to be heard before his contract was
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terminated and secondly whether the appellant was obliged, in terms of the
contract of employment between the respondent and itself, to comply with
medical boarding procedures or the availing of an option of early retirement
before the contract of employment could be terminated.
Court does not have unlimited jurisdiction over all labour matters and such jurisdiction it may
have has been specifically provided for by law. There is no general right of application to
the Labour Court because s 89(1)(a) of the Act restricts the matter to “applications … in
terms of this Act”. In terms of the Act, disputes are required to be dealt with by a labour
officer. This is the first instance when a hearing takes place once a dispute has been referred
to such officer. It is only when the labour officer is unable to settle the dispute properly
referred to him, or where he issues a certificate of no settlement and fails to refer the matter
settlement, that a party can apply to the Labour Court in terms of s 93 (7) of the Act. Only in
this way can a dispute such as the present come before the Labour Court – this being one of
the instances of an application contemplated in s 89(1)(a) of the Act. The intention was never
to give the Labour Court the power of review at first instance but rather to place it on the
same footing as the Supreme Court. The legislature has been very specific as to the nature of
The appellant further argues that the power of review in terms of s 89(1)(d) is
confined to those instances where the High Court has the power of review in labour matters,
and not to matters generally. If indeed the High Court has no review jurisdiction in labour
The appellant further takes the point that the legislature has established an
elaborate chain of investigation and conciliation. The labour officer is the court of first
instance and it is to him that the respondent should have directed his complain.
For the above reasons the appellant submits that the Labour Court did not have
The respondent on the other hand argues that the Labour Court has the same
powers of review in respect of labour matters as would be exercisable by the High Court in
other matters.
For reasons that follow, I am not persuaded that the appellant is correct in its
and 27 of the High Court Act, [Cap 7:06]. Those two sections provide:
Subject to this Act and any other law, the High Court shall have power, jurisdiction
and authority to review all proceedings and decisions of all inferior courts of justice,
tribunals and administrative authorities within Zimbabwe.
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(1) Subject to this Act and any other law, the grounds on which any
proceedings or decisions may be brought on review before the High Court
shall be –
(b) Interest in the cause, bias, malice or corruption on the part of the
person presiding over the court or tribunal concerned or on the part
of the authority concerned , as the case may be;
(2) Nothing in subsection (1) shall affect any other law relating to the review
of proceedings or decisions of inferior courts, tribunals or authorities.”
labour matters, the Labour Court shall exercise the same powers of review as does the High
Court in other matters. The jurisdiction to exercise these powers of review is in addition, and
not subject, to the power the court has to hear and determine applications in terms of the Act.
In order for a review to be the subject of a hearing, such review must be brought by way of
application – see order 33, Rule 256 of the High Court of Zimbabwe Rules, 1971. Clearly an
application for review is not the type of application contemplated in s 89 (1) (a) of the Act.
The suggestion by Mr De Bourbon that the Labour Court has been given the
same power of review as would be exercisable by the High Court in respect of labour matters
is, in my considered view, incorrect and inconsistent with the provisions of the Act. I say this
for two reasons. Firstly, the Act is clear that no court, other than the Labour Court, shall have
jurisdiction in the first instance, to hear and determine any application, appeal or matter
referred to in s 89(1) of the Act – see s 89(6) of the Act. In various decisions, the High Court
has interpreted this provision to mean that the High Court has no jurisdiction in respect of the
matters referred to in s 89(1) of the Act. See for instance Zimtrade v Makaya 2005(1) ZLR
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427 (HC) at 429 and DHL International (Pvt) Ltd v Madzikande 2010 (1) ZLR 201 (HC) at
203 – 204. In the circumstances the suggestion that the High Court would have any review
powers in respect of labour matters generally would be untenable. Secondly it is clear that
the interpretation given relies on a superficial reading of the wording of s 89(1)(d). The
section should be understood to mean “the same powers of review in respect of labour
matters as would be exercisable by the High Court” or alternatively “the same powers of
review, as would be exercisable by the High Court, in respect of labour matters”. Any other
The suggestion that the powers of review enjoyed by the Labour Court are
similar to those of the Supreme Court is equally incorrect. Section 25 of the Supreme Court
(1) Subject to this section, the Supreme Court and every judge of the
Supreme Court shall have the same power, jurisdiction and authority as
are vested in the High Court and judges of the High Court, respectively,
to review the proceedings and decisions of inferior courts of justice,
tribunals and administrative authorities.
(2) The power, jurisdiction and authority conferred by subsection (1) may
be exercised whenever it comes to the notice of the Supreme Court or a
judge of the Supreme Court that an irregularity has occurred in any
proceedings or in the making of any decision notwithstanding that such
proceedings are, or such decision is, not the subject of an appeal or
application to the Supreme Court.
(3) Nothing in this section shall be construed as conferring upon any person
any right to institute any review in the first instance before the Supreme
Court or a judge of the Supreme Court, and provision may be made in
rules of court, and a judge of the Supreme Court may give directions,
specifying that any class of review or any particular review shall be
instituted before or shall be referred or remitted to the High Court for
determination.”
It is clear from the above section that whilst the Supreme Court may exercise
the same review jurisdiction, power and authority as the High Court, no person has the right
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to institute any review in the first instance before the Supreme Court. In other words the
Supreme Court has the power of review over matters coming before it for adjudication by
way of appeal or whenever it comes to the notice of the Court that an irregularity has
occurred in any proceedings or in the making of a decision and it is felt that such an
The fact that provision has been made for disputes to be first referred to a
labour officer is in my view irrelevant. Review proceedings are concerned with the manner
in which a decision is taken and not its merits. If for example a disciplinary authority had no
jurisdiction to hear a particular matter, or was biased or its decision grossly unreasonable, the
person aggrieved is empowered to approach the Labour Court and apply for the review of the
proceedings. The fact that, instead of seeking a review, one can approach a labour officer in
terms of s 93 of the Act does not and cannot affect the review power of the Labour Court
provided the requirements for such review are met. A decision by a Magistrate Court can be
the subject of not only review proceedings before the High Court but also appeal proceedings
in the normal way. The fact that there is an elaborate appeal procedure would in no way
suggest that the High Court has no review jurisdiction in the first instance.
In my view the Labour Court does have review jurisdiction to deal, in the first
quo reserved judgment in this matter. This was on 15 March 2010. Exactly eight (8) months
later, i.e. on 15 November 2010, the appellant then filed an application to file supplementary
heads of argument in which the main issue raised was whether the Labour Court had
jurisdiction to deal with the application for review. It is also common cause that the
application was not set down for argument and that on 7 March 2011 the respondent’s legal
practitioners wrote to the Registrar of the Labour Court opposing the application on the basis
firstly that it was too late for the appellant to seek to file supplementary heads at a time when
judgment was awaited and secondly that there was need for finality in litigation. The court a
quo then handed down its judgment on 21 March 2011. In dismissing the application to file
“In my view this belated application should be dismissed for the simple reason that
labour disputes should be finalised expeditiously and to allow a party to file further
pleadings after the reservation of judgment would defeat this principle. There must
be finality to litigation. …”
has been reserved, the parties have no right to file any further arguments. However the
parties have the right to apply to file further heads of argument and where the argument
relates to a legal matter, especially one of jurisdiction, a court should be slow to refuse to
allow such further argument unless to do so would clearly interfere with the workings of the
judicial officer concerned. Whilst the application was filed eight (8) months after judgment
had been reserved, it was made four (4) months before judgment was handed down and
clearly the matter had not been handled with any degree of urgency.
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In his submissions the respondent argued that the appellant should have
diligently submitted any further argument within a reasonable time and not eight (8) months
been reserved, the parties have no right to file further heads of argument. However a party
has the right to apply to file such heads of argument. When that happens, as it did in this
case, it is incumbent upon the judicial officer seized with the matter to hear both sides and
thereafter to make a decision on whether or not to allow such filing. In this case this was not
done and it appears even the merits of the application were not considered. The court a quo
merely considered the extent of the delay and the need for finality in litigation as sufficient
grounds for the dismissal of the application. I have no doubt in my mind that in doing so the
court a quo erred. As Mr De Bourbon correctly pointed out, where an issue of law,
particularly one of jurisdiction, is raised, a court should be slow to refuse to allow such
further argument unless the court is satisfied that such further argument would not take the
It is settled law that a question of law can be raised at any time, even for the
first time on appeal, as long as the point is covered in the pleadings and its consideration
involves no unfairness to the party against whom it is directed. See Ahmid v Manufacturing
Once the application to file further heads of argument was filed, the court a
quo should have set the matter down and thereafter made a proper determination of the
request. The court did not do so and proceeded to consider its judgment without so much as
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considering whether a valid point of law had been raised. Only in its judgment did it then
give its reason for ignoring the application, namely that it was belated and that there was need
for finality in litigation. In my view the court erred in its approach to the application.
The rationale for allowing issues of law to be raised at any time is to enable a
court to have all the information, even at a very late stage, so that it is enabled to make a
proper decision. The issue raised was a serious one. If a court has no jurisdiction that would
be the end of the matter and any determination made thereafter would be null and void.
That the court a quo should have allowed the filing of further heads of
argument is buttressed by what has happened on appeal before this Court. The issue of
jurisdiction has been raised and argued by both parties, notwithstanding that the court a quo
had dismissed the request to file supplementary heads on this aspect. Indeed this is the first
quo was not sufficient ground to refuse to even hear the application. This is a case where the
court a quo should have allowed the appellant to file supplementary heads of argument and
allow the other side the opportunity to respond before coming to a decision on the matter.
terms of s 14(4) is subject to substantive and procedural fairness and, secondly, whether on
the facts of this case the appellant complied with the provisions of s 14(1) of the Act and, if
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so, whether its invocation of the provisions of s 14(4) of the Act was in the circumstances
proper.
(3) If, during any one-year period of service of an employee, the employee has
used up the maximum period of sick leave on full pay, an employer shall, at
the request of the employee supported by a certificate signed by a registered
medical practitioner, grant a further period of up to ninety days’ sick leave on
half pay where, in the opinion of the registered medical practitioner signing
the certificate, it is probable that the employee will be able to resume duty
after such further period of sick leave.
(4) If, during any one-year period of service the period or aggregate periods of
sick leave exceed –
(a) ninety days’ sick leave on full pay; or
(b) subject to subsection (3), one hundred and eighty days’ sick
leave on full and half pay: the employer may terminate the
employment of the employee concerned.
(5) An employee who so wishes may be granted accrued vacation leave instead of
sick leave on half pay or without pay.”
right to elect to terminate the employment of the employee if (a) the employee has taken
more than ninety (90) days sick leave on full pay in any one year or (b) the employee has
taken more than one hundred and eighty (180) days sick leave on full pay and half pay in any
one year period. The appellant further argues that the right to terminate is not subject to
The respondent, on the other hand, argues that s 14(4) of the Act does not give
an employer an unfettered right to unilaterally and summarily dismiss an employee and that
fair labour standards and the audi alteram partem rule still apply in this situation.
In determining this issue, the court a quo relied on the case of Mutukwa v
National Diary Co-operative Ltd 1996 (1) ZLR (1) ZLR 348 which held, inter alia, that an
employer was entitled to terminate the contract of employment on notice to the employee.
The court was of the view that this principle was applicable to this case.
The reliance on the above case was clearly erroneous. I say so because s 14(b)
of the then Labour Relations Act [Cap 28:01] provided that, unless more favourable
conditions were provided in the contract, where an employee was unable for a period
exceeding one month to fulfil the conditions of his employment, the employer was entitled to
terminate the contract on due notice, in which event the employee was to be entitled to all
benefits due to him up to the date of such termination. The requirement to give notice was in
terms of s 14(b) and was mandatory. It is common cause that s 14(b) was repealed by Act
17/2002 which substituted the section currently in existence and which is the subject of this
appeal. The current provision makes no provision for the giving of notice. Considering the
circumstances as a whole, I would agree with Mr De Bourbon that there was a clear
legislative shift and change of policy regarding the termination of employment on the
grounds of excessive sick leave. Section 14(4) has no express conditions attached to it except
the requirement as to the amount of sick leave which an employee can take in any one year
reaching consequences, one should assume that before such a decision is taken the employer
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would be obliged, at the very least, to advise the employee of the fact that he has taken the
sick leave contemplated in s 14(4) and that for that reason it is intended to terminate his
contract of employment in terms of that section on a date specified in such notice unless the
employee returns to work before the expiration of the specified period. In my view it would
no be proper for an employer to invoke the provisions of s 14(4) of the Act and without
notice to the employee, proceed to terminate his contract of employment. In short the audi
alteram principle would still need to be respected and failure to do so would render any such
between the appellant and the respondent in which the appellant made it clear that it would
invoke the provisions of s 14(4) of the Act. The respondent challenged the appellant’s right
to terminate his employment in terms of s 14(4). The appellant then terminated the
I turn to deal with s 14(1) of the Act. In an ordinary employment contract, the
termination of employment effected on 18 September 2009 would have been the end of the
Clearly the intention on the part of the legislature was to give the employer
and the employee the autonomy to agree on better terms and conditions than are provided
for in s 14.
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In the present case it is common cause that the appellant’s policy and
procedure document was incorporated into the contract of employment of the respondent.
The relevant portion of the Group Policy and Procedures, Referenced P+P No. 38, provides
as follows:
“2 SICK LEAVE
2.1 All Employees:
2.1.1. 90 working days full pay in any one calendar year.
2.1.2. 90 working days half pay in any one calendar year.
2.1.3. During this period of half pay, full employee and Company contributions to
the Pension Schemes must be continued.
PROCEDURES
COMPASSIONATE/SICK/ACCIDENT PAGE 2 OF 5
2.1.4. If, during the absence of an employee on sick leave at half pay, it is
determined that he/she should be retired on the grounds of being
permanently disabled, from illness, immediate steps must be taken to
secure early retirement or to have the employee medically boarded.
2.1.5. …
2.1.6. …
2.1.7. …
2.1.8. …
COMPASSIONATE/SICK/ACCIDENT PAGE 3 OF 5
Full pay for the period of absence, provided that the cause of
the accident which led to the injury is not attributable to the
negligence of the employee.
The words “unless more favourable conditions have been provided for in a
contract of employment” are wide and unambiguous. In other words, where more favourable
conditions have been agreed to, those conditions will take precedence over the periods
provided for in s 14(4) and will need to be complied with before any termination is
should be retired on the grounds of being permanently disabled, from illness, immediate steps
must be taken to secure early retirement or to have the employee medically boarded. This
provision also applies to sick leave necessitated by injury arising from an accident.
It is common cause in this case that the provisions of para 2.1.4. of the Group
Policy and Procedures were not complied with. In the circumstances the appellant could not
proceed as if that provision did not exist. It was a provision that the appellant itself had
inserted into the Group Policy and Procedures and which had been incorporated into the
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contract of employment. That provision certainly provided more favourable terms than
would normally be the case. The appellant was therefore under obligation to look at the
contract of employment without reference to its own policy and procedures was irregular.
(1) The appeal is allowed only to the extent that para 3 of the order of the court a
deleted.