Religious Holidays
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From time to time, the subject of religious holidays spring to the forefront, and this happens especially in light of the fact of the extended shopping hours which now seem to be the norm. Trading in the retail industry has become a 24/7 trading hour’s industry, and practically every type of retail operation is open 7 (seven) days per week for trading purposes.
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This introduces the problem of public holidays. In the old days, all businesses were automatically closed on public holidays, but in our modern day and age the opposite is the case, all businesses, at least in the retail industry, seem to be automatically open for business on public holidays.
Some employers place clauses in their employment contracts stating that the employee accepts that all public holidays are normal working days, and that the employee agrees to work on all public holidays at normal remuneration.
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The argument that seems to come up is not so much the question of remuneration, but rather the question of the employee’s right to have public holidays off on full pay. This applies especially when it is a religious matter such as the Easter weekend, where two public holidays are involved, namely Good Friday and Easter Monday.
Although these are both Christian religious holidays, the same question arises with other religions and holidays for religious purposes, such as in the Jewish faith or the Muslim faith. During 2012 the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities held public participation sessions where the public was afforded the opportunity to make representations regarding the Christian public holidays in the Public Holidays Act. This information will be used to determine whether the current Act discriminates against other religions.
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The Basic Conditions of Employment Act (BCEA) remains unchanged, despite clauses in employment contracts stating that all public holidays are “normal working days”. A legislated public holiday cannot be termed a “normal working day” simply because the employer decided to do so for operational reasons. The present situation is that in terms of the BCEA section 18, public holidays may only be worked by agreement between employer and employee. This would imply that the employee has the right to refuse to work on a public holiday, particularly if it is a matter of religion where an employer may not discriminate against employees on the ground of their religion.
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Section 18 of BCEA:
1. “An employer may not require an employee to work on a public holiday except in accordance with an agreement.
2. If a public holiday falls on a day on which an employee would ordinarily work, and employer must pay:
a. An employee who does not work on the public holiday, at lease the wage that the employee would ordinarily have received for work on that day;
b. An employee who does work on the public holiday:
i. At least double the amount referred to in paragraph (a); or
ii. 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.”
Don’t confuse the provisions of the Main Collective Agreement of the National Bargaining Council for Hairdressing, Cosmetology, Beauty, and Skincare Industry with section 18 of the BCEA. These two legislative provisions must be read in conjunction and applied accordingly.
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With regard to employees requiring a day or 2 (two) days off work for religious purposes, where such days are not legislated public holidays or even for example in a case where a Saturday is considered in some instances to be the Sabbath, a problem may arise.
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If an employer has a genuine operational reason for requiring an employee to work on that particular day that the employee requires to be off work for religious purposes, then that would possibly not be seen as discrimination and the employer may be justified in refusing to allow leave for that day. However, if there are other employees of the same faith who are allowed to have that particular day off then it could possibly be seen as discrimination.
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Another option available to both employers and employees is to exchange public holidays with any other days in terms of the Public Holidays Act, 1994 (Act No.36 of 1994). The Public Holidays Act states that, by agreement with the employee, a public holiday may be exchanged for another day.
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As an example, let us take Easter Monday. This is a public holiday, but the employer requires their employees to work on Easter Monday. However, if the employees take Easter Monday off, they are entitled only to be paid their normal wage for the day. Therefore, the employer can say to them that they would like them to work on Easter Monday, without receiving double pay for working on that day, and they can take another day off on full pay in substitution for Easter Monday.
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If an employee works on Easter Monday without exchanging it for another day, they get 2 (two) days paid for working Easter Monday. If the employee works on Easter Monday for a normal wage, and they rake another day off on full pay, that also amounts to 2 day’s pay. Therefore, there is no loss to the employees, and there is no financial gain to the employer.
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