Conditions of Employment

Public Holidays - Where the public holiday happens to be on a Sunday

André Claassen

 

Whenever a public holiday comes around, where the public holiday happens to be on a Sunday, and of course the Monday is then automatically a public holiday, I get inundated with e-mails from employers asking if they must pay for 2 public holidays or 1 public holiday.


I think that generally, it has always been accepted or construed that the public holiday on the Monday is in substitution for the public holiday on the Sunday. This is a logical deduction. Employees who work a five-day week, do not ordinarily work on a Saturday or Sunday, and in addition, those two days on not taken into the calculation of "paid days."


Therefore, if a public holiday fell on a Sunday, then such an employee would have a day off on the Sunday, irrespective of whether it was a public holiday or not - thus, if it was a public holiday, that employee would be losing out on the benefit of a day off work on full pay.

 

Therefore, the Legislature decreed that the Monday shall be a public holiday so that those employees can enjoy the benefits of a day off work on full pay. For employees who, for example, work a seven-day week, such as in certain industries like security and construction, those employees whose normal shifts would fall on the Sunday (public holiday) would receive their normal pay for that Sunday work – usually 1,5 times the normal wage rate, - and then they would have the benefit of a public holiday on the Monday. They could either have the day off on full pay, or they would be paid double their normal wage rate if they worked on the public holiday.

 

That, in our view, is the logical explanation of the intention of the Legislature in section 2(1) of the Public Holidays Act 36 of 1994. It is not only logical, but makes perfect sense. Therefore, our view is that in terms of payment of remuneration, there is only one public holiday to be paid, and not 2 public holidays. Our opinion is that the Legislature never intended that the provision in section 2 [1] should be that employees must be paid for two public holidays.


However, in the matter between Randfontein Estates Ltd v National Union of Mine Workers, heard in the Labour Court earlier this year, the dispute concerned whether section 2 (1) should be interpreted to mean that when a public holiday falls on the Sunday, the following Monday shall be a public holiday in addition to the public holiday on the Sunday, or in substitution for the public holiday on the Sunday

 

The wording in section 2 [1] reads as follows:

" The days mentioned in schedule 1 shall be public holidays, and whenever any public holiday falls on a Sunday the following Monday shall be a public holiday". The Labour Court have attributed to these words, their "ordinary literal grammatical meaning" - which is the first principle regarding interpretation of statutes. The Court stated that section 2 [1] contains two clauses - the first being "The days mentioned in schedule 1 shall be public holidays", and the second being "and whenever any public holiday falls on a Sunday, the following Monday shall be a public holiday."


The Court stated that the second clause is in addition to, and distinct from, the first clause, and, in the view of the Court, is not a qualifying clause and is not in substitution of the primary or first clause. Section 1(1) of the Act defines "public holidays" to mean "the days mentioned in schedule 1, AND any other day declared to be a public holiday under section 2." The interpretation of this means that, in terms of section 1, Heritage Day was a legislated public holiday (September 24th – Sunday), and then, Monday 25th, which had been declared a public holiday in terms of section 2, was also, and in addition to the Sunday, a public holiday.

 

The Court went further to state that this means that Sunday 24th remains a public holiday - it does not cease to be a public holiday because the Monday 25th has been declared a public holiday as well. The decision here is that the Monday is addedto the list of public holidays, and is not in substitution for any public holiday.


So the question arises - do you now pay for 2 public holidays, or only for 1 one public holiday? In our view, the position would be that those employees who work a five-day week, and are therefore not required to work on a Saturday or Sunday, for which they do not, in any case, get paid, they would not be entitled to be paid for the public holiday on the Sunday. Our reasoning here is that the employee is entitled to the Sunday off without pay, as part of these terms and conditions of employment. He is contracted to work only five days per week.

 

The Basic Conditions of Employment Act, section 18, states that "if a public holiday falls on a day on which an employee would ordinarily work, then an employer must pay…..etc." In the case of a worker who works five days per week, a public holiday on the Sunday is not a day on which he would ordinarily work, therefore he is not entitled to be paid for that day if he does not work it. Obviously, if he does work it, then he would be entitled to be paid for it.


Therefore, in the case of the employee who ordinarily works a five-day week, nothing changes and the judgment in the case mentioned does not change anything for such employees - the employer still only pays for one public holiday.He would be entitled to have the Monday off on full pay, since the Monday is a public holiday, falling on a day on which he would ordinarily work.

 

In the case of the seven-day week worker, the public holiday on the Sunday would then fall on a day on which he would ordinarily work, and he must be paid in terms of the Basic Conditions of Employment Act- or, obviously, in terms of any collective agreement or main agreement that may be in existence.


This payment would probably amount to double the normal wage rate, because it is a public holiday. If that same worker then also worked on the Monday, he would again have to be paid double the normal wage rate, because the Judgment states that the public holiday on the Monday is in addition to the public holiday on the Sunday.

 

The answer there, in the case of 7-day per week employees, would be for the employer to decide whether they are to work on the Sunday at double the normal wage rate, and have the Monday off work at normal pay, or the other way around, or whether he will give employees both days off on normal pay, since both days would be public holidays.

 

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