What is justifiable compassionate leave?
Chronicle 31 August 2017
Davies Ndumiso Sibanda, Labour matters
WHILE a lot has been written about special leave, it remains problematic for both workers and the employer resulting in frequent conflicts when employees ask for special leave and employers object.
Special leave is guided by provisions of sections 14B of the Labour Act Chapter 28:01 which are express as to when an employee qualifies for special leave and there are only six grounds for applying for special leave and these are:
(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;
(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.
While (a) – (e) are straightforward, (f) which deals with compassionate grounds has led to many conflicts.
The conflicts arise from the parties’ lack of understanding of a compassionate ground.
A compassionate ground is any occassion that would make a reasonable person show sympathy, pity or mercy.
Most employers wrongly think compassionate ground relates to death only, this is incorrect reading of the law as there are many occasions not related to death which qualify as justifiable compassionate ground.
In cases of death, there are many border line cases where employers refuse to grant special leave, however, on scrutiny it is noted that those cases qualify for leave.
Cases that involve an employee’s siblings, the spouse’s siblings, employee’s parents, parents’ siblings and parents-in-law’s siblings in my opinion qualify for special leave as any reasonable court is most likely going to place them within the reach of the definition of special leave in terms of clause (f).
The same is most likely to apply to grandparents.
While many employers think including all these people could result in losses in production time, the law must be observed and having done a mini research, the impact of allowing employees time off on special leave if the leave is properly managed is minimal.
There is also a misconception among the workers over entitlement to special leave. The 12 days are not automatic as there are not available to an employee who has not been visited by any of the six occasions listed.
Further, it is not automatic that someone will get 12 days in a calendar year as the Labour Act Chapter 28:01 gives 12 days as the maximum, the number of days given depends on the circumstances of each case.
Further, these days are not cumulative.
I recall a case which I have told many times where a petrol attendant whose wife lost a brother and when he asked for special leave to attend the funeral, his supervisor turned down the application.
A few months later, the same supervisor’s wife lost a brother and when the supervisor went to wake up the fuel attendant at night so that he could get fuel, an argument between the two started with the worker arguing the supervisor’s case was not an emergency one.
This was based on the fact that the rules say he can only provide fuel to staff on emergencies and the basis of his argument was the earlier decision by the same supervisor when the petrol attendant’s wife had lost a brother.
Such arguments could have been avoided had the supervisor used the eyes of a reasonable person to deal with the petrol attendant’s special leave request.
In conclusion, when dealing with special leave applications in terms of section 14B (f), there is need to interpret compassion correctly and strike a balance between business interest and the employee’s rights.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235.