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Case Law: Do Sunday Public holidays include the Monday? If so, you may have to pay for it

by , 03 November 2015
The Basic Conditions of Employment Act (BCEA) states that you can't force an employee to work on a public holiday, unless upon agreement. And if they do work on a public holiday, you'll have to pay them double their normal wages.

But what if complications arise as a result of public holidays falling on Sundays? Because, as is common knowledge to many South Africans, the Monday afterwards is considered a public holiday. But now, is it the Sunday which is considered to be the 'actual' public holiday, or is it the Monday, or is it, in actual fact, both?

Either way, the answer could have serious implications with regard to employee agreements and wages.

Having mentioned that, the case of Randfontein Estates Ltd v NUM can help shed some light on the issue...

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In this case, Randfontein Estate, a gold mining company, had a 'continuous operations' agreement with the National Union of Mineworkers (NUM). In other words, it would continue to operate seven days a week, except on public holidays – in which case the employees would be paid a day's leave.

But when a public holiday arose on a Sunday, disagreement arose between the NUM and Randfontein as to the interpretation of what was considered a public holiday.

In other words, Randfontein argued that the Monday was a public holiday, while NUM argued that both the Sunday and Monday are considered public holidays.

The matter then went to the Labour Court, in which it was decided that a public holiday doesn't cease to be one, simply because it falls on a
Sunday. All that happens is that the Monday becomes an extra public holiday. And so the employer would be required to pay for both public holidays.

But when more public holidays, in the year, fell on a Sunday, the gold-mining company took the Labour Court's decision on appeal.

The Labour Appeal Court agreed that the issue must be clarified as much as possible, so as to prevent any future, and possibly inevitable, disputes from arising in the future.

The Labour Appeals Court also agreed that the Public Holidays Act has its own interpretive complications in that it actually doesn't specifically state that, should a public holiday fall on a Sunday, both Sunday and Monday shall be public holidays.

Despite this, as well as the arguments of Randfontein and the NUM, both of which argued according to the Public Holidays Act, the decision for both the Sunday and Monday to be considered public holidays was retained, and so Randfontein would have to pay their employees two days' leave if a public holiday fell on a Sunday.

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