Following on the two previous recent newsletters on the subject of public holidays, I am still receiving large numbers of e-mails from employers to whom the situation is not clear.

It seems that the most common question is - why should an employee get paid for 2 public holidays ?

In order to try and clarify the situation, I am going to quote again from case number JR 1218/05, held in the Labour Court, Johannesburg, between Randfontein Estates Ltd v National Union of Mineworkers.

Firstly - the question : when a public holiday falls on a Sunday, why is the Monday also a public holiday ?

For the answer, we are referred to the Public Holidays Act – Act 36 of 1994 , section 2(1) (the act)

The applicant in the above case (Randfontein Estates) contended that section 2 (1) of the act, which states that whenever a public holiday falls on a Sunday, the following Monday is also a public holiday, should be interpreted to mean that the public holiday on the Monday is declared in substitution for, or instead of, the public holiday on the Sunday.

In my view, the contention of the applicant is quite clear and needs no further explanation.

Judge J Francis stated that the rationale for section 2 (1) - stating that when a public holiday falls on a Sunday, the following Monday shall be a public holiday - is that employees who do not ordinarily work on a Sunday would lose out on the benefit of having a day off work on full pay. In other words, those employees are off on a Sunday anyway - for which they do not get paid - and therefore the benefit of a public holiday on a Sunday is lost to them. They thus get the benefit on the Monday, which would otherwise have been a normal working day for them.

Therefore, with the Monday automatically being a public holiday, those employees can have the Monday off on full pay.

Judge Francis stated further in his judgement that “ the transfer of this benefit to the following day is not required in the case of employees who ordinarily work on a Sunday, since if the Sunday is treated as the public holiday, the workers obtain the benefit of being off work on full pay on the Sunday. Allowing such employees an additional public holiday on the Monday would be to provide them with a double benefit, in that they would then receive 2 , and not 1 , paid days off work.”

This would clearly imply that employees who ordinarily work on a Sunday - but have the Sunday off on full pay because it is a public holiday - cannot also claim a public holiday on the Monday, and cannot claim double pay for working on the Monday.

That is my interpretation of this - which I think is logical.

However, this leaves us hanging in mid-air on the question - what happens with an employee who ordinarily works on a Sunday, does in fact work on the Sunday (which is a public holiday) and also works on the Monday (which is a public holiday. Does he get double pay for both days ?

It has been established above if he takes the Sunday off, then he receives the benefit of one day off with full pay - and therefore the benefit is not, in addition, also transferred to the Monday.

The Judge stated further that “ the resolution of this dispute depends on whether section 2(1) of the act, properly interpreted, means that the Monday is substituted for the holiday on the preceding Sunday, or whether the public holiday on the Monday is in addition to the public holiday on the Sunday. The answer to this question depends on the interpretation of the section of the act in question.”

The Judge went on to say “ section 2 (1) consists of a primary (main) clause and a subordinate clause.

The primary (main) clause is ‘ the days mentioned in schedule 1 shall be public holidays’, and the subordinate clause is ‘ and when ever any public holidays falls on a Sunday, the following Monday shall be a public holiday.”

The judgement went further to state that the subordinate clause stands as an additional and distinct clause from the primary (main) clause, and is not a qualifying clause, or instead of, the primary (main) clause.

Section 1 (1) of the act defines the phrase “public holidays” to mean ‘ the days mentioned in schedule 1 and any other day declared to be a public holiday under section 2K”

This indicates that a date determined to be a public holiday does not change its character merely because it falls on a Sunday. It remains a public holiday.

The Monday succeeding the public holiday on the Sunday is added to the list of public holidays - it is not instead of or in substitution for any public holiday on the list of public holidays.

As examples, if Workers Day falls on a Sunday, the celebrations for Workers Day will be held on the Sunday - those celebrations will not be transferred to the Monday, even though the Monday is a public holiday.

The same would apply to Human Rights Day - if it falls on a Sunday, the celebrations will be held on the Sunday, and not on the Monday even though the Monday is also a public holiday.

The judgement continued to state that, in section 2 (1) it was the intention of the Legislature to declare the Monday as a public holiday if a public holiday fell on a Sunday. A public holiday falling on a Sunday does not cease to be a public holiday. All that happens is that the following Monday automatically becomes a public holiday.

There is no specific clarification in the judgement regarding when an employee who works on both the Sunday and the Monday is entitled to be paid for 2 public holidays.

Further, in terms of the judgement, if an employee takes the Sunday off on full pay, then he cannot also claim to take the Monday off on full pay because he has already received the benefit of the public holiday.

Similarly, if an employee works on the public holiday on the Sunday, he will receive double pay for the day.

He cannot then also claim to take the Monday off on full pay, because he has already received the benefit of the public holiday on the Sunday. He also cannot then also claim a double pay for working on the Monday.

For further information, contact advice@labourguide.co.za

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