It may happen that after an agreement to work on a public holiday has been concluded, the employee falls ill or is injured and is no longer able to work as agreed. For all intents and purposes the agreement to work on the public holiday renders that day an ordinary working day.

The employee is then entitled to submit a medical certificate towards a claim of paid sick leave.

Under section 18 (2) of the BCEA, 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 that day of work; and an employee who does work on the public holiday at least double the amount of the ordinarily work day rates.

However, under section 22 (5) of the BCEA which deals with sick leave the Act goes on to read that an employer must pay an employee for a day’s sick leave the wage the employee would ordinarily have received for work on that day.

This, it would seem, has created some confusion among payroll administrators in terms of what must be paid over to the employee for sick leave when an agreement to work on a public holiday has been concluded. On a simple reading of section 22 (5) of the BCEA, one would assume that the employer must pay the employee double the employee’s wage as this is what the employee would have ordinarily been entitled to for work done on the public holiday. This interpretation, though more favourable for the employee, is incorrect.

In interpreting section 18 (2), specifically the employee’s entitlement to double their ordinary wage, the act gives a prerequisite. For purposes of entitlement it is insufficient that there is only an agreement to work on the public holiday. The employee must have actually worked or rendered a service on the day in question before they can accrue the right to double their ordinary wage.

It goes without saying then that the employee should be paid their ordinary wage if no work is rendered due to illness or injury. It’s important to emphasise that due to the agreement, the public holiday becomes an ordinary work day and disciplinary processes for unauthorised absence are still enforceable for unjustified absences from work.

Disclaimer: The information published in this article or newsletter is of general nature and should not be used without obtaining specific advice as to its application in your business or under your specific circumstances. Payslip will accept no liability if the information is used without first obtaining specific advice from one of our consultants.