Monday, March 17, 2008

This year, on the 21st of March, both Good Friday and Human Rights Day will fall on the same day. As the Easter Weekend approaches, increasing uncertainty exists as to the legal implications, for both employers and employees, of this double public holiday. What are these implications and what are the possible solutions to this unusual scenario?
In terms of section 5 of the Public Holidays Act 36 of 1994, every employee is entitled to:-
a)      at least the number of public holidays as provided for in this Act;
b)      payment for every public holiday, which payment shall be at least as favourable as the payment provided for by section 11 of the Basic Conditions of Employment Act.”
In terms of the Basic Conditions of Employment Act, employees who work on a public holiday are entitled to be paid double their ordinary wage for that day. Senior managerial staff, sales staff, employees who work for less than 24 hours a month and employees who earn above a certain amount (currently R149 736 per annum) are excluded from this entitlement. On a plain reading of the Act, these employees remain entitled to at least the number of public holidays provided for therein. It is relevant to note that the Act provides for twelve public holidays each year.
The Federation of Unions of South Africa has written to the President asking him to declare Thursday, the 20th of March, a public holiday. Whilst this proposal might appear onerous to many an employer, the suggested alternative, of paying employees who are required to work on the 21st of March, quadruple their daily wage, is nothing short of absurd.
Paying employees who work on the 21st of March quadruple their daily wage would create the anomaly that employees are paid for a 367th day this year. Instead of paying employees double for two public holidays (being the usual scenario when Good Friday and Human Rights Day fall on separate days), employers would be paying four times the daily wage for only one day of work. Employees, on the other hand, would still only be required to work on one public holiday.  The economic implications for employers, should such a proposal be realised, could prove to be somewhat disastrous.
Whilst it is impossible to isolate what the actual intention of the legislature was when drafting section 5 of the Public Holidays Act, the recent case of Randfontein Estates Ltd v NUM provides us with a useful indication of what the courts consider the legislature’s intention to have been. In this regard, in interpreting section 2 of the Public Holidays Act, (which provides for the Monday following a Sunday on which a public holiday falls, to be a public holiday), the Labour Appeal Court held that the intentions of the legislature were as follows:
i)                    to set aside days for commemoration and/or celebration by reason of their historical, social or religious significance;
ii)                   to ensure that employees do not lose remuneration thereby;
iii)                 to ensure that the majority of South Africans do not lose the additional benefits of a public holiday by reason of the accident of its holiday falling on a Sunday;
iv)                 to allow a measure of flexibility for employers and employees to enter into agreements varying the recognition of particular public holidays provided that the number enjoyed by employees is at least the number provided for in the Act.”
Both parties in this matter conceded that the case turned on whether the Legislature had intended the number of public holidays to be limited to twelve or whether there should be at least twelve public holidays every year. Emphasizing the legislature’s intention of ensuring that employees were granted at least the number of public holidays provided for in the Act, the court dismissed the appeal and found in favour of the Union.
It is accordingly submitted that, given the emphasis which the Labour Appeal Court has placed on ensuring that employees are assured of at least twelve public holidays a year, it seems sensible to assume that employees might well be entitled to the benefits of another public holiday in lieu of the 21st of March 2008.
What then is the practical solution to this issue? In terms of section 2(2) of the Public Holidays Act, employers and employees may enter into agreements whereby any public holiday is exchanged for any other day. In the absence of a legislative amendment curing the lacuna in the Act, section 2(2) provides employers with a feasible alternative.
Whilst it would be clearly nonsensical to pay employees, who work on the 21st of March this year, quadruple their ordinary wage, employers would be advised to enter into agreements with their employees exchanging Good Friday for another day, thereby leaving Human Rights Day to fall on the 21st of March (alternatively, Human Rights Day could be exchanged and Good Friday left to fall on the 21st of March). This would, at the very least, avoid the anomaly of an extra day’s wage being payable to employees working on the 21st of March this year. Whilst this proposal might appear somewhat onerous for employers, the prudent employer has already made budgetary provisions for twelve public holidays within the financial year (as is the case every other year) and employers should accordingly suffer very little if any loss as a result.
Emma Whitelaw is a candidate attorney and Bob von Witt is a director at Bowman Gilfillan