Article 9/2023

Section 2 of the Public Holidays Act 36 of 1994 (‘the Act’) provides:

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‘Days to be observed as public holidays

  1. 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.
  2. Notwithstanding the provisions of sub-section (1) any public holiday shall be exchangeable
    for any other day which is fixed by agreement or agreed to between an employer and
    employee.’

There are 12 days specified in Schedule 1 to the Act:

New Year’s Day                         1 January
Human Rights Day                   21 March
Good Friday                               Friday before Easter Sunday
Family Day                                 Monday after Easter Sunday
Freedom Day                             27 April
Workers’ Day                             1 May
Youth Day                                  16 June
National Women’s Day            9 August
Heritage Day                             24 September
Day of Reconciliation              16 December
Christmas Day                          25 December
Day of Goodwill                        26 December

What is the meaning of s2(1) of the Act?

Does such section mean that the Monday would be a public holiday instead of the Sunday (when the
Sunday is a public holiday in terms of the Act) or does it mean that, in such instance, both the Sunday
and the Monday would be public holidays?

How should s18 of the Basic Conditions of Employment Act 75 of 1997 (‘the BCEA’) be applied, with
reference to the Act and the relevant case law?

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In Randfontein Estate v NUM (2008) 19 SALLR 34 (LAC), the labour appeal court held that whenever
a public holiday falls on a Sunday, the following Monday shall also be a public holiday, entailing that
there are two public holidays.

For instance, worker’s day fell on a Sunday this year, as was the case in 2005. This will also be the
case with Christmas Day in 2022.

  • An employer may not require an employee to work on a public holiday except in
    accordance with an agreement.
  • If a public holiday falls on a day on which an employee would ordinarily work, an employer
    must pay –

    • an employee who does not work on the public holiday at least the wage that the
      employee would ordinarily have received for work on that day;
    • an employee who does work on a public holiday –
      • at least double the amount referred to in paragraph (a); or
      • if it is greater, the amount referred to in paragraph (a) plus the amount earned
        by the employee for the time worked on that day.
  • If an employee works on a public holiday on which the employee would not ordinarily work,
    the employer must pay the employee an amount equal to –

    • the employee’s ordinary daily wage; plus
    • the amount earned by the employee for the work performed that day, whether
      calculated by reference to time worked or any other method.
  • An employer must pay an employee for a public holiday on the employee’s usual pay day.
  • If a shift worked by an employee falls on a public holiday and another day, the whole shift
    is deemed to have been worked on the public holiday, but if the greater portion of the shift
    was worked on the other day, the whole shift is deemed to have been worked on the other
    day.’

An application of the principles identified in Randfontein Estates Ltd v NUM (LAC) lead to, at least, the
following two scenarios where the promulgated public holiday falls on a Sunday:

  • employees normally working a week consisting of Monday to Friday, every week
    • This category of employee does not ordinarily work on a Sunday, which is the first public
      holiday in casu. In terms of the BCEA, since the employee does not usually work on this
      public holiday, and in fact does not work on such day, no extra payment is required.
    • It is only where the employee is required to work and does perhaps do so to cover for
      employees who are now taking the day as a public holiday, that the employee will be
      entitled to be paid in terms of s18(3) of the BCEA.
    • Now, what about the second public holiday, namely, the Monday? On the basis of the
      aforesaid judgment, the Monday becomes a public holiday and these employees can
      either take the public holiday or work on it and be paid in terms of s18(2) of the BCEA.
  • employees normally working over weekends, including a Saturday and Sunday or just a Sunday, but who are not required to work on a Monday, every week
    • In respect of the Sunday (the first public holiday in casu), being a day on which the
      employee ordinarily works, the employer must pay the employee in terms of s18(2) of the
      BCEA.
    • However, in terms of the said judgment, if the employee does not usually work on the
      Monday, being the second public holiday, and in fact does not work on such day, no extra
      payment is required. It is only where the employee works on the second public holiday,
      namely, the Monday, which he does not ordinarily work on, that he is entitled to payment in
      terms of s18(3) of the BCEA.

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.