Can Refusal to work on a public holiday be regarded as Insubordination?

The other day people were up in arms, on the social media streets, the burning issue was the decision taken by management of one popular supermarket to suspend employees pending a disciplinary hearing for failing to report for work on a public holiday as requested. Since the matter may still be incomplete, today we just want to explain the law relating to working on public holidays, and steer clear from the case of supermarket. Our Law has catered for provisions made under other Laws and has put in place measures to incorporate those provisions. Public Holidays Act is one such Law.  A day is declared a public holiday through the Public Holidays Act which was issued in 1995. Every year , there are holidays that are pre-determined and therefore gazette as such by this piece of legislation – Christmas Day, Good Friday, Easter Monday, Africa Day are examples of those type of holidays. However, there are national activities that may require government through the Minister of Home Affairs to declare a day as a public holiday.

Under the National Labour Laws, employees are not expected to work on a public holiday. Since it is not a work day it is an unpaid day. The Law has further taken cognizance of the fact that due to demands of certain types of businesses or operations it may be necessary for employers to request employees to work on public holidays, contrary to what the Law has provided.

In such an event, provision has been made for either party in the employees to request work to be done on public holiday. The magic word here is request- it is not common for employees to request to work on a public holiday. It is important to stress this point because work on a public holiday has consequences-the main one being cost implications. An employer will not be bound to pay an employee who decided to work on a public holiday but was not authorized to do so. Payment for that day’s work would have to be budgeted for to make it easy for the employer to pay those employees who worked on a public holiday.

Another consequence is that nay accident that may happen which leads to employees’ injury, illness or death would be linked directly to the employees request or authorization. The decision to compensate or not to, would first investigate if the employee in question was rightfully at the workplace when the accident happened. If not authorized, the employee would forfeit compensation

as he would be taken to have unilaterally taken upon himself to work without authorization more like self-injury. This is why it is important to press upon this issue of request or authorization.

The second part of this provision is how this request is relayed to employee. Where annual plans are collectively done and shared with employees in advance, employees would have been advised in advance that on the predetermined holidays they would be expected to work. This opens a window of negotiation between employer and employee. These consultations are very important as each party is given an opportunity to express their interests as reparse worthy on the public holiday reasonableness must prevail. Employees cannot unreasonably refuse to work especially if the request is made well in time for them to prepare their minds and rearrange their personal activity schedules. In the same vain the employer is not allowed to unreasonably force the employee to report for duty even where the employee has given sound and justifiable reasons why they cannot work on the day. Last minute requests are discouraged especially because public holidays are not a surprise- they can easily be planned for. However emergencies are common in any workplace and it is under those circumstances that an employer may make a short notice request. When this happens, the employer must appreciate that the employee may already have other plans which should be considered fairly and objectively.

The third and last issue relating to work on public holidays, is payment for such work. Remember this would ordinarily be an unpaid day as the employee would be off work but because they have been requested and have agreed to work, the employees would express appreciation by paying the employee at double the normal daily rate. The interpretation of double rate has been a subject of a lot of controversy, subject for another day.

Most employees now insert a provision in their employment contracts that by signing the contract the employee agrees to work on public holidays and rest days and will not unreasonably refuse such a request. The provision goes further to say unreasonable refusal will be taken as an act of insubordination and the employee may face drastic consequences including dismissal. This clause gives the employer grounds to take action against an employee who refuses to work on a public holiday despite the request made on time.

 Reasonableness is a standard measured objectively and must be tested objectively. Would a reasonable man in the shoes of the employee have refused the request made by the employer to the employee or would a reasonable man in the shoes of the employer have refused to consider the reason advanced by the employee not to work on the public holiday?

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