SOUTH AFRICA: EMPLOYMENT LAW IMPLICATIONS OF 27 DECEMBER 2022 BEING DECLARED A PUBLIC HOLIDAY
The Public Holidays Act 36 of 1994 (Act) entitles all South Africans to 12 public holidays per annum. Section 1(1) of the Act defines the term ‘public holidays’ to mean the days mentioned in schedule 1 of the Act and any other day declared to be a public holiday by the President through proclamation in the Government Gazette (Gazette) in terms of section 2A. The Act states further that whenever any public holiday falls on a Sunday, the following Monday shall be a public holiday.
This year, Christmas Day (25 December 2022) falls on a Sunday, followed by another official public holiday, the Day of Goodwill. This raises a few questions, namely, whether 27 December 2022 is a public holiday as well? And if so, how will that affect employee remuneration?
Christmas Day has been on a Sunday on only four other occasions in the recent past: in 2016, 2011, 2005 and 1994. Only in the years 2011 and 2016 was 27 December declared a public holiday.
The prerogative to make these declarations rests entirely with the elected President at the time. However, citizens may attempt to influence the President’s decision through petitions and requests, as was the case in 2016 when the Federation of Unions in South Africa (FEDUSA) made the request to former President Jacob Zuma, and the request was granted.
In 2011, the declaration was published in the Gazette just a few days shy of Christmas, on 20 December 2011, and in 2016, the declaration was published on 14 October 2016. Accordingly, there appears to be no precise date at which the President is required to make the decision.
It may be too early to speculate on whether President Cyril Ramaphosa will declare 27 December 2022 a public holiday or not, but as the year comes to a close, his decision will be anticipated by many as it will have an impact on the time employees have to spend with their families as well as their remuneration packages.
Impact on employee remuneration
With Christmas Day being a public holiday that falls on a Sunday, it is important to read the Act together with the Basic Conditions of Employment Act 9 of 1997 (BCEA). The BCEA sets out specific provisions on how employers should pay wages for employees who work on Sundays and/or public holidays.
In term of section 16 of the BCEA, employers are required to pay employees who work on Sundays double the wages for each hour worked, unless the employee ordinarily works on a Sunday, in which case the employee is entitled to one and one-half the wages for each hour worked.
Section 18 of the BCEA provides that an employer may not require an employee to work on a public holiday unless the employee has agreed to work. Where such an agreement is made, employees are ordinarily affected in one of two ways:
- if the public holiday occurs on the day the employee is ordinarily expected to work, then that employee is entitled to be paid a minimum of double his or her normal wages for the day or his or her normal wage plus the wage for the time worked on the holiday, whichever is higher; or
- if the employee is not ordinarily expected to work on that public holiday but is none the less requested to, then he or she must be paid his or her normal wage plus the wage earned by the employee for the work performed on the holiday.
Employees who do not work on public holidays that fall on days on which they would ordinarily work are entitled only to their normal wage for the day without having the day allocated as annual leave.
However, on the rare occasion such as this year, where the public holiday falls on a Sunday, it may be difficult to determine when employees are entitled to wages as set out in the BCEA, as in the case of Randfontein Estates Limited v the National Union of Mineworkers (2008) 29 ILJ 998 (LAC).
Randfontein Estates Ltd had an agreement with its employees that Sundays were to be treated as normal working days, but that public holidays were not to be treated as such. Therefore, work ceased on a public holiday. In this case the Workers’ Day public holiday fell on a Sunday and was observed on the following Monday. The National Union of Mineworkers demanded that its members be paid for both the Sunday and Monday holidays.
The Labour Appeal Court held that if a public holiday falls on a Sunday, and a Sunday is a normal working day, then the employee who does not work on that Sunday and the following Monday will be entitled to receive normal pay for both days. Further, if the employee works on the Sunday or on the Monday, or on both days, then such an employee will be entitled to at least double the normal rate for both days.
Recently FEDUSA wrote to President Cyril Ramaphosa requesting that 27 December 2022 be declared a paid public holiday. Whilst it is too early to tell what the President will decide, we hope that he does declare 27 December 2022 a public holiday because his failure to do so will unduly disadvantage South Africans as the Act guarantees 12 public holidays, not 11 days, which would be the case if 27 December 2022 is not declared a holiday.
If 27 December 2022 is declared a public holiday, employers are encouraged to ensure that employees who work on Christmas Day, the Day of Goodwill and 27 December 2022 are remunerated accordingly in terms of the BCEA.