We have just had the benefit of public holidays. Much discussion has taken place with regard to the need to work on public holidays and or the payment for same.
Public holidays are set out in terms of the Public Holidays Act No 36 of 1994. Furthermore, public holidays are governed by the Basic Conditions of Employment Act (BCEA) No 75 of 1997.
There are enormous uncertainties about the two vexed questions. Firstly, when is someone forced to work on a public holiday and can workers refuse to report for duty?
In essence, this is clearly outlined in the BCEA under Section 18 (1). It states quite clearly “an employer may not require an employee to work on a public holiday except in accordance with an agreement”.
In essence, if employees agree to work on a public holiday, then subsequent refusal could lead to disciplinary action.
In certain industries working on a public holiday is a necessity. Invariably when working in a restaurant or a hotel, you will find the letter of appointment or contract of employment containing a clause enforcing work on public holidays. This work will be remunerated as double pay or will translate into payment for that one day and an extra leave day.
If a shift worked by an employee falls on a public holiday and another day, then the whole shift is deemed to have been worked on the public holiday.
The only exception would be that if the greater portion of the shift was worked on the other day, the whole shift has been deemed to have been worked on the other day.
If however there are two consecutive days worked and the public holiday falls on a Sunday, this will create a further complication.
As we saw last week, the Sunday was a public holiday and because it was a Sunday the Monday was declared to be a public holiday as well.
This is automatically deemed to be a public holiday as set out in Section 2 (1) of the Public Holidays Act.
If a person works on both the Sunday and the Monday do they receive double pay for both days? This query has been settled in the court case “Randfontein Estates Limited vs National Union of Mineworkers”.
In essence the court agreed that the employees would be remunerated double for both days worked. This included the actual Sunday which was the original public holiday as well as the following Monday.
If however, the employees do not work on both days then the employee would receive double for the one day worked and ordinary pay for the next day taken off.
The court said, “all that happens when a public holiday happens to be on a Sunday, is that the following Monday becomes an additional public holiday”. This ruling from the court is in accordance with BCEA and the Public Holidays Act.
Another issue that often arises is that when a public holiday is on a Tuesday or a Thursday you often find staff requesting a day’s leave to try and make a very long weekend by taking just one day's leave.
Employers are encouraged to investigate the issue with a Thursday and a Tuesday public holiday by coming to some sort of arrangement with their staff as to who would possibly require that day off and try and arrange so that production or service does not come to a halt on an intermittent day.
If an employee is destined to work on a public holiday but falls ill, then that employee would not be entitled to double pay but just the ordinary pay due to that person for their sick leave.
South Africa has one of the highest numbers of public holidays in the world. Furthermore, we still have the practice of allotting public holidays on days other than a Monday or a Friday.
The disruption to the work week is enormous and it is recommended that our government revisits the Public Holidays Act as soon as possible so as to grant the public holiday on the closest Monday or Friday as opposed to a mid-week holiday.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media.
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