If a public holiday falls on a Sunday, the next day, Monday, is a public holiday in terms of the Public Holidays Act. What are the consequences for businesses whose employees routinely work on Sundays? Are employees then entitled to two days or just one day off on full pay?
It has been widely accepted that, for work related purposes, the Monday would become the public holiday instead of the Sunday. However, the Labour Court came to a different conclusion in the recent judgment of Randfontein Estates Ltd v NUM.
The employer in the case ran continuous operations and had an agreement with the employees' trade union that provided for a complex four-week shift system, which meant that employees had to ordinarily work on Sundays although they were not required to work on public holidays.
May Day last year fell on a Sunday therefore the Monday was a public holiday. The union believed its members were entitled to two days off on full pay, while the employer was of the view that they had to work on the Sunday and only get one paid day off. The employees took the two days off and the employer reluctantly paid them for both days. The employer then approached the Labour Court for a declarator on this issue, as this same situation would again arise at the end of the year when both Christmas Day and New Year's Day would fall on a Sunday.
The Court analysed a provision of the Public Holidays Act, which states:
"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 employer argued that the rationale for the provision was to ensure that employees who do not ordinarily work on a Sunday get the benefit of a paid day off work by transferring the benefit to the following day, which would ordinarily be a working day. The transfer of this benefit to the following day was not required in the case of employees who ordinarily work on a Sunday since if the Sunday were treated as a public holiday the workers would obtain the benefit of a paid day off work on the Sunday. Allowing such employees an additional public holiday on the Monday would allow them a double benefit.
The Court asserted that the answer to the question lay in the correct interpretation of the Act. Does the Act intend to substitute the Monday as a public holiday for the Sunday in question, or is the public holiday on the Monday in addition to the public holiday on the Sunday? The court decided that on an interpretation of the plain meaning of the language of the Act, the Monday following a public holiday falling on a Sunday was added to the list of public holidays. The language was not ambiguous and it was therefore unnecessary to consider further sources of interpretation. Employees were therefore entitled to two days off on full pay.
The Court was not asked to answer a related question, namely at what rate should an employee who ordinarily works on a Sunday be paid if he or she is required to work on a public holiday that falls on a Sunday? Will Sunday rates apply or will the more favourable public holiday rates apply? The above-mentioned judgment certainly supports the view that such a Sunday should not to be regarded as a Sunday for these purposes, but as a public holiday and that the public holiday rates should apply.
Written by Helena Janisch for www.labourwise.co.za
Labourwise is an on-line labour relations service aimed at assisting SMMEs with the implementation of effective labour relations. They can be contacted via www.labourwise.co.za or firstname.lastname@example.org