Employers be Aware: Both Sunday & Monday are Public Holidays!
Employers often seek clarity regarding a situation which does not occur often in the year, but when it does, gives them headaches: Am I obliged to treat the Monday, following a Sunday on which a Public Holiday happens to fall as a public holiday as well, or do I treat that Monday as a public holiday instead of the Sunday?
This situation has obvious financial consequences for an employer that has agreed with employees that a Sunday is a normal working day, as both the Sunday on which a Public Holiday happens to fall and the following Monday may have to be treated as Public Holidays, resulting in double the benefits of a Public Holiday to the employees.
This situation was explored and resolved by the Labour Court (“LC”) and Labour Appeal Court (“LAC”) in the case of Randfontein Estates Ltd v National Union of Mineworkers (LC: (2006) 27 ILJ 1200 (LC); LAC: (2008) 29 ILJ 998 (LAC)). Randfontein Estates, which had concluded various continuous operation agreements (“Conops”) with the National Union of Mineworkers (“NUM”), requested a declaratory order from the court as to the proper interpretation of section 2(1) of the Public Holidays Act, No. 36 of 1994 (“the Act”), which provides:
“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.”
The reason the declaration was sought was because, in terms of the Conops, employees of Randfontein Estates were required to work in shift cycles in terms of which Sundays were treated as normal working days.
In 2005, 1 May, recognised in South Africa as Workers’ Day, fell on a Sunday. In terms of the Act, the following Monday, 2 May, would be a Public Holiday. If both Sunday and Monday were Public Holidays, then Randfontein Estates would have to treat both as paid days off, which would result in a double loss in production and a double payment to the employees.
Randfontein Estates therefore argued that the Legislature’s intention regarding section 2(1) of the Act was, in situations where a Public Holiday falls on a Sunday, that the following Monday be treated as the Public Holiday instead of the Sunday. NUM disagreed with this interpretation, arguing that the Legislature’s intention is that both the Sunday on which the Public Holiday falls as well as the following Monday are to be treated as Public Holidays.
Both the LC and LAC agreed with NUM’s interpretation of section 2(1) of the Act, and used the plain language of the section, other sections in the Act, and even the Afrikaans text of the section to determine the Legislature’s intention regarding this section.
It was held that the important determining factor was the date on which the Public Holiday fell, and not the day of the week on which it falls, with the only exception being Easter. For the courts to declare that a Public Holiday is not to be celebrated on the Sunday on which it fell but instead on the following Monday made no sense: If New Year’s Day fell on a Sunday the country would not stop celebrations and wait to bring in the new year on the following Monday instead. The day of the week on which the Public Holiday falls is therefore irrelevant.
It is therefore important to note that, as held by the courts, the Sunday on which a Public Holiday falls is not replaced as a Public Holiday by the following Monday; the Sunday remains a Public Holiday and the following Monday automatically becomes a Public Holiday too.
Deirdre Venter- Partner
Reabetswe Mampane- Associate