Many South Africans spend a large part of December and January on leave celebrating the holidays with friends and family.
Four public holidays fall during December and January each year: 16 December is the day of Reconciliation, 25 December is Christmas Day, 26 December 2016 is the day of Goodwill and 1 January is New Year’s Day. These are four out of 12 public holidays provided for by the Public Holidays Act, No 36 of 1994 (Act).
The Act provides that “whenever any public holiday falls on a Sunday, the following Monday shall be a public holiday”. The court has confirmed that where a public holiday falls on a Sunday, it does not cease to be a public holiday on the Sunday, the Monday following the public holiday is an additional public holiday.
This year 25 December 2016 falls on a Sunday. This means that the following Monday, 26 December 2016 shall also be a public holiday. However, 26 December 2016 is already a public holiday in terms of the Act.
The 2016 calendar gives rises to a situation where the “additional public holiday” on the Monday falls on a day already scheduled as a public holiday. President Zuma has, however, declared an additional day a public holiday in 2016, that being Tuesday, 27 December 2016. Questions arise as to whether an employer is obliged to pay an employee for the Sunday and Monday or only one of these days. The legal position in this regard is as follows.
If an employee works on a public holiday, the employer must consider the provisions of the Basic Conditions of Employment Act, No 75 of 1997 (BCEA) when determining the amount to pay the employee. In particular, the employer must consider whether the public holiday falls on a day on which the employee would ordinarily work. If the public holiday falls on a day on which the employee would ordinarily work and the employee works on that public holiday, the employee is entitled to double his/her ordinary wage for the day or, if greater, the employee’s ordinary wage for the day “plus the amount earned by the employee for the time worked on that day”. However, if the employee does not work on the public holiday which falls on a day the employee would ordinarily work, the employee is entitled to his/her ordinary wage for the day.
If the public holiday falls on a day on which the employee would not ordinarily work and the employee works on that public holiday, the employee is entitled to his/her ordinary wage for the day and “the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method”. Importantly, the Labour Appeal Court has held that based on an interpretation of the Act, if the public holiday falls on a Sunday, the Sunday remains a public holiday in addition to the following Monday.
In other words, an employer is required to treat both days as a public holiday and to remunerate an employee accordingly with reference to the abovementioned provisions of the BCEA depending on whether the employee works on such public holidays.
It follows that in those instances where the public holiday falls on a Sunday, employees shall enjoy an additional public holiday for the year in question. The same applies in respect of Sunday, 1 January 2017 where both that day together with the following Monday are deemed to be public holidays.
By Gavin Stansfield, Samantha Coetzer and Craig Thomas, Cliffe Dekker Hofmeyr