Interpretation of special leave remains problematic

DESPITE the fact that the right to special leave has been in place since March 2003, many employers and employees still struggle with interpretation of section 14B of the Labour Act Chapter 28:01, which covers special leave.

While special leave is a right available to all employees whether managerial, non-managerial, permanent or non permanent, the right to access it is not automatic as many employees wrongly assume.

I have had many employees saying they have 12 days special leave per annum, but legally, there is nothing like that.

The law only allows an employee to access special leave when any of the following six things have visited the employee irrespective of the nature of the employment contract.

The Labour Act Chapter 28:01 Section 14B reads, “Special leave on full pay not exceeding twelve days in a calendar year shall be 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 awitness;

(c) 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.”

It is clear that for one to access special leave, he has to provide evidence to the employer that he qualifies for special leave in terms of provisions of section 14B of the Labour Act.

The Act does not prescribe the number of days one has to get.  

It impliedly leaves that discretion to the employer. I am of the view that the number of days will be guided by circumstances of each occasion.

For example, under 14B (f) an employee whose wallet or handbag has been stolen by thieves could qualify for justifiable special leave in order to replace vital documents that would have been stolen.

However, the employee could only be given one day or more depending on the time required to replace the key documents.

On the other hand, there is an employee who lives in Bulawayo who loses a loved one in Honde Valley.

Such employee might be given five or more days to attend the funeral due to the long distance to the travel to and from. 

However, an employee who lives in Bulawayo and loses a loved one in Ntabazinduna, which is only 30km from Bulawayo might be allowed one day off to attend the burial.

Section 14B (a) provides for special leave where an employee has an infectious disease. 

In my view this would cover diseases like chicken pox, small pox and scabies which the employer does not want to spread to other employees.

In a way, it is an extension of sick leave.

Section 14B (b) provides for special leave in cases where an employee attends any court in Zimbabwe as a witness.

What it means is that there must be proof that the employee is going to the particular court as a witness, appropriate legal documents must be provided as proof.

This could be a subpoena from the court or a letter from the Chief’s court.

It must be noted that this type of special leave is not extended to the accused, defendant and complainants. 

Section 14B (c) focuses on registered Trade Union members who are invited to outside meetings or gatherings during working times.

Unregistered Trade Union meetings are not included. 

I am of the view that for smooth management of this type of leave, employees who are Trade Union officials should give reasonable notice to the employer while workers should be released on special leave, there is a need to ensure that granting of such leave has minimal or no disruption at all of the normal working processes. 

Section 14B (d) allows employees who are detained by police for questioning to access special leave. 

Employees who are detained for any reason other than questioning do not qualify for special leave under this clause.

Section 14B (e) provides for special leave on the death of specified people.

These are your spouse, parent, child or legal dependant. It does not extend to other relatives.

There is a need for employees to avoid being traditional in their approach by avoiding using the traditional meaning of spouse, parent, child or legal dependant as traditionally, these could include many other people.

Section 14B (f) is what we could refer to as the omnibus clause as it allows the employer to release an employee for any justifiable compassionate ground.

A justifiable compassionate ground is any occasion that would make any reasonable person show sympathy, pity or mercy.

It does not necessarily mean that somebody has to die. Its application calls for reasonableness on both the employer and employees.

In conclusion, the employer and employees are urged to domesticate these provisions at  In conclusion, the employer and employees are urged to domesticate these provisions at Works Council and agree on implementation so as to minimise conflicts around them.

-Davies Ndumiso Sibanda can be contacted on: Email:[email protected]