Author: David Jenkins, NZPPA CEO

I regularly get asked questions about what an employee should be paid on a public holiday that is an otherwise working day, but the employee goes sick (before or during work). In this article, I will be putting forward the variations we commonly come across and the NZPPA’s position and why. Now, I am only focusing on sick leave, but the rules also apply to bereavement and family violence leave.

I will cover the following two examples in this post:

1. An employee that works on a public holiday (it is in their employment agreement) also being an otherwise working day for them, but the employee contacts their employer before working that day to say they are sick and will not be coming to work.
2. The employee is one who works on a public holiday. However, partway through the public holiday, they go home sick.

Please note I am only focusing on if and what the employee gets paid when sick on a public holiday, not on the rules to get sick leave in the first instance.

1. Employee goes sick before working on a public holiday

This one is easy as the Holidays Act clearly states what is required. If the employee were to work on a public holiday but contacts their employee to advise that they are sick and will not be at work, Section 61A of the Holidays Act states:

“An employee who is required, or has agreed, to work on a public holiday but who does not work on the day has the day treated as a public holiday taken (paid at RDP or ADP if the day cannot be determined) and not a sick leave day from the employee’s sick leave entitlement.”

The key point is the employee was due to work but, because of being sick, did not work, so the day is treated as if they had taken the holiday. They do not get paid 1.5, and they do not get an alternative holiday. They are sick, but because the day is a public holiday they would have worked, it is now treated as if they have taken the public holiday.

2. Employee comes to work on a public holiday and then goes sick

This is where we see the issues appear due to a range of different interpretations.

Under Section 50, the employee gets 1.5 for actual hours worked (RDP or, if the day cannot be determined, ADP). Now, the issue is what to pay or if the employer should pay for the hours the employee goes sick. To explain this, I will use the following example.

Example:

Employee works Mon to Fri (8 hours per day, 8am to 4.30pm). The employee’s employment agreement states they are required to work on a public holiday that falls on any day from Mon to Fri. The employee starts at 8am, and by 12pm, they tell their manager they need to leave as they are not feeling well.

Here is what I have seen different payrolls pay or not pay for the period of sickness the employee has taken on a public holiday:

1. a) Gets paid nothing for going sick:

• Employee gets paid 1.5 x 4 hours, an alternative holiday for the public holiday worked, and nothing for the 4 hours.

1. b) Gets paid sick leave for going sick:

• Employee gets paid 1.5 x 4 hours, an alternative holiday for the public holiday, and 4 hours of paid sick leave.

1. c) Gets paid their ordinary hourly rate for going sick:

• Employee gets paid 1.5 x 4 hours, an alternative holiday for the public holiday worked, and 4 hours paid at the employee’s agreed ordinary hourly rate.

1. d) Gets paid public holiday taken for going sick:

• Employee gets paid 1.5 x 4 hours, an alternative holiday for the public holiday worked, and 4 hours paid based on a public holiday taken.

So, which one is correct?

Just a couple of things to consider first:

• Under the Holidays Act, sick leave is stated in days, not part days. It’s up to an employer to agree to provide a part day. Otherwise, if sick leave was provided for a part day, then the employer could take a full day of sick leave entitlement.
• Section 61A (covered previously) only applies when the employee was to work but went sick on a public holiday and did not work. There is no other mention of what happens when an employee works but leaves early because they are sick on a public holiday.
• There is the law, and then there is what has been agreed.  The employer could have agreed to pay the employee an additional payment if they went sick on a public holiday.
• If an employee is on call on a public holiday that is an otherwise working day and is not called out, they are paid for a public holiday taken and an alternative holiday (as they have had their PH restricted), not their hourly rate.
• The relationship between annual holidays and public holidays under Section 40 of the Act states if a public holiday occurs during an employee’s annual holidays, the public holiday must not be treated as part of the employee’s annual holidays.  So, a public holiday is treated as a public holiday, even during annual holidays.
• If an employee works a public holiday, they get 1.5 for actual hours worked at RDP or ADP if the day cannot be determined (and an alternative day if an otherwise working day). If they don’t work the public holiday, they get paid for a public holiday taken (again at RDP or ADP if the day cannot be determined). The spirit of the Act is about the day being a public holiday for the employee (worked or taken) and nothing else.

NZPPA’s position

NZPPA follows the last point from above that a public holiday is a public holiday and cannot be a sick day, so our position is:

1. d) Gets paid public holiday taken for going sick:

• Employee gets paid 1.5 x 4 hours, an alternative holiday for the public holiday worked, and 4 hours paid based on a public holiday taken.

This should be seen as the minimum the employee receives under the Act.

This is based on:

• A public holiday is a public holiday for the employee as the Act only provides two options for an employee on a public holiday – work it or take it.
• Sick leave under the Act is a full day, not a part day, so providing a half-day sick does not fit with the requirements of the Holidays Act and requires the employer’s agreement, or the employee loses a full day of sick leave entitlement.
• Providing a “Public Holiday Taken” because the employee was at work and then went home sick on a public holiday fits with the theme of how other leave is not used on a public holiday under the act.

So, in conclusion, a public holiday is a public holiday for an employee and any other type of leave provided under the Holidays Act is not applied on that day.

NZPPA supporting NZ payroll since 2007!