The festive period is almost upon South African and the debate of religious holidays springs to the forefront yet again. The diversity of South Africa’s nation has led to serious retrospection over the SA public holidays roster.
Last year saw a public outcry from the Indian community over holidays of other faiths and a call to have Good Friday and Christmas “reviewed” to either be suspended as public holidays or the inclusion of Hindu, Muslim, Jewish & African religious observances in the South African Public Holidays calendar.
Where recommendations are accepted the responsible Minister will then table a draft bill in Parliament in terms whereof the recommendations of the SALRC will be implemented. Stakeholders, of which IndianSpice is a part of will be reviewing the SALRC report when issued to the Home Affairs Ministry.
The South African Law and Reform Commission was mandated by the cabinet with the task of revising the South African statute book. This is in respect of legislation administered by the Department of Home Affairs, which administers public holidays.
The aim is to identify and recommend for repeal or amendment legislation, or any provision in legislation, that was inconsistent with the equality clause in the Constitution.
The SALRC has completed their research which kicked off in 2015 and the contents of this research is now to be presented to the Ministry that will substantiate the inclusion of other faith related observances into the national public holidays list or cancel the Christian religious observances of Christmas and Easter.
What is the current state of Diwali and Eid holidays?
The two main festive season public holidays observed by Christians are Good Friday and Christmas. And these are paid public holidays and these create a differentiation amongst other religious faiths in the country. Muslims who celebrate Eid-ul-Fitr and those who observe Diwali, are not recognised as public holidays in South Africa.
This means that those who celebrate the above two occasions have to apply for an annual day off from work, sometimes as unpaid leave. Also affected are the educational institutions examinations clashed with days of religious concern. The lack of provision for these religious days are a violation of Section 9(3) of the Constitution and is direct discrimination on the basis of religion and belief.
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.
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 recent Easter weekend, where two public holidays were involved, namely Good Friday and Easter Monday.
What is the process going forward in relation to the review of the Public Holidays Act 36 of 1994?
According to researcher, Ms. Geraldine Moloi of the SALRC:
- The first step in this process was the publication of discussion paper, the terms whereof will have been prompted by the result of an investigation or research into the targeted piece of legislation.
- The purpose of the discussion paper is to elicit the response or attitude of the Government Department tasked with the administration of the target legislation as well other stakeholders towards the proposed review, amendment or repeal of the target legislation.
- Now that the consultative process has come to an end, the SALRC embarked on a study of all the submissions received, and based on the result of the study, the SALRC will compile a report taking into account all the submissions received which report will contain the views of the Commission regarding whether the target legislation should be reviewed, amended or repealed.
- It must be borne in mind at the very outset that the SALRC, cannot amend, review or repeal any piece of legislation. Its role is one of research, reporting of its findings after the a consultative process has been embarked upon and concluded.
- The report will then be sent to the responsible department –which is the Department of Home Affairs, which may agree with the findings in which case review or amendment or repeal will be settled upon, or reject the proposals, in which event the process will end.
- The draft bill referred to herein will have been drafted with the assistance of the SALRC in an advisory capacity.
The SALRC has received quite a large number of responses and submissions regarding the review of the Public Holidays Act 36 of 1994. The SALRC has gone through all the representations and collated the submissions which are in the process of being incorporated into the draft report. This information will also be made available in the report that will be compiled after considering all the comments/ petitions received. Stakeholders (of which IndianSpice is a part of ) will be contacted after the process has been finalized and given an update.
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. The Basic Conditions of Employment act remains unchanged, despite courses 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 an act of Parliament has declared it to be a public holiday, and in no employer and no employment contract has the authority to change the law and declare it to be “a normal working day”
The present situation is that in terms of the Basic Conditions of Employment Act, public holidays may only be worked by agreement between employer and employee, and this would imply that the employee has the right to refuse to work on a public holiday, and particularly if it is a matter of religion, where an employer may not discriminate against employees on the ground of their religion.
With regard to employees requiring a day or 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. 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 a discrimination, and the employer may be justified in refusing to allow leave for that day.
However, if they are other employees of the same faith who are allowed to have that particular day off, then it would possibly be seen as discrimination – I do not know of any actual case law in this regard, so it would probably have to be tested. However, it is hardly likely that a refusal based on the grounds that “it is a normal working day for us” would be seen as justifiable grounds for refusing an employee the day off. This question arose in many instances on the recent Good Friday and Easter Monday, and the advice that we gave to employees was that they should insist on taking those two days off, because the employer was unable to justify any reason other than “it is a normal working day for us.”