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As is usual at this time of the year, the subject of religious holidays springs to the forefront, and this happens especially in light of the fact of the extended shopping hours which now seem to be the norm. Trading in the retail industry has become a 24/7 trading hours industry, and practically every type of retail operation is open seven days per week for trading purposes. This introduces the problem of public holidays. In the old days, all businesses were automatically closed on public holidays, but in our modern day and age the opposite is the case - all businesses, at least in the retail industry, seem to be automatically open for business on public holidays.
Some employers place clauses in their employment contracts stating that the employee accepts that all public holidays are " normal working days", and that the employee agrees to work on all public holidays at normal remuneration. The argument that seems to come up is not so much the question of remuneration, but rather the question of the employee's right to have public holidays off on full pay. This applies especially when it is a religious matter - such as the recent Easter weekend, where two public holidays were involved, namely Good Friday and Easter Monday.
Although these are both Christian religious holidays, the same question arises with other religions and holidays for religious purposes, such as in the Jewish faith or the Muslim faith. The Basic Conditions of Employment act remains unchanged, despite courses in employment contracts stating that all public holidays are "normal working days." A legislated public holiday cannot be termed a "normal working day", simply because an act of Parliament has declared it to be a public holiday, and in no employer and no employment contract has the authority to change the law and declare it to be "a normal working day"
The present situation is that in terms of the Basic Conditions of Employment Act, public holidays may only be worked by agreement between employer and employee, and this would imply that the employee has the right to refuse to work on a public holiday, and particularly if it is a matter of religion, where an employer may not discriminate against employees on the ground of their religion.
With regard to employees requiring a day or two days off work for religious purposes, where such days are not legislated public holidays, or even for example in a case where a Saturday is considered in some instances to be the Sabbath, a problem may arise. If an employer has a genuine operational reason for requiring an employee to work on that particular day that the employee requires to be off work for religious purposes, then that would possibly not be seen as a discrimination, and the employer may be justified in refusing to allow leave for that day.
However, if they are other employees of the same faith who are allowed to have that particular day off, then it would possibly be seen as discrimination - I do not know of any actual case law in this regard, so it would probably have to be tested. However, it is hardly likely that a refusal based on the grounds that "it is a normal working day for us" would be seen as justifiable grounds for refusing an employee the day off. This question arose in many instances on the recent Good Friday and Easter Monday, and the advice that we gave to employees was that they should insist on taking those two days off, because the employer was unable to justify any reason other than "it is a normal working day for us."
Thus far, we have not heard of any comebacks on that, and some employees are did inquire with us have in fact reported that they were paid their normal wage for the day. It would seem that this problem is going to remain with us until they are some suitable amendments to the BCEA to provide for these problems.
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