In an employment relationship, a dispute is any disagreement or conflict between employees and their employer over issues such as discipline in the workplace, management style, wages, dismissals and other grievances which employees may have over their working conditions.
Broadly speaking, labour disputes are of two types namely disputes of right and disputes of interest. It is the purpose of this article to fix a dividing line between these two types of dispute as they are fundamental to the philosophy informing the dispute resolution procedures of the Labour Act.
Section 2 of the Labour Act defines dispute of right as “any dispute involving legal rights and obligations, including any dispute occasioned by an actual or alleged unfair labour practice, a breach or alleged breach of this Act or of any regulations made under this Act, or a breach or alleged breach of any of the terms of a collective bargaining agreement or contract of employment”.
It goes on to define dispute of interest as “any dispute other than a dispute of right”. South African labour law guru, Dr John Grogan, on page 344 of his book Workplace Law distinguishes between the two types of dispute as follows:
“A dispute of interest is one in which the claimant party seeks a benefit or advantage to which he has no legal entitlement; a dispute of right is one concerning the alleged infringement of a legal right, or the conferment of a benefit to which the claimant is legally entitled”.
Basically, disputes of right are conflicts that arise over the interpretation and application of existing labour laws, employment contracts, collective bargaining agreements, custom and practice or common law of employment. In practical terms, disputes of right will focus on existing rights.
For example, the law provides that employees must not be dismissed unfairly. Both the employer and the employee are not in disagreement about the existence of this right. However, conflict can arise over whether this right has been infringed, or not.
The employer will maintain that the employee was fairly dismissed while the employee will argue that their right not to be unfairly dismissed has been infringed.
Disputes of right usually involve claims of unfair dismissal (for example, retrenching employees without consulting with them), unfair discrimination or other unfair labour practices.
An example of a dispute of right is where an employer fails to pay an employee the correct rate.
Given that disputes of right are disputes are of a legal nature, the best way to resolve them would be to make use of judicial or quasi-judicial processes such as disciplinary procedures, grievance procedures and arbitration. A dispute of right is not settled by negotiation.
In contrast, disputes of interest are disputes between employers and employees where neither party has a right to that which it wants.
With such disputes, conflict may be a matter of opinion, such as whether a person or group of persons is entitled to certain resources or privileges.
There is no established law or right, hence parties have to resolve their differences through collective bargaining or negotiation.
The outcome of these negotiations may result in the creation of new rights that will affect the future relationships of the parties.
A good example would be a wage dispute. There is no right to a wage increase.
The outcome of a wage dispute can only be determined by power play – the exercise of economic power by employees and employers. Each party employs different strategies to achieve what it wants.
Employees can embark on strike action where agreement cannot be reached. Employers can withhold pay, effect a lockout or threaten employees with dismissal.
In order to protect industrial relationships from anarchy and lawlessness, the Labour Act sets out structures and processes on how disputes in the workplace must be resolved.
It prohibits collective job action over disputes of rights. While collective job action is fundamental to the resolution of disputes of interest, the Labour Act has put in place strict procedural requirements and exclusions before collective job action can be considered lawful.
In cases where collective job action poses social and economic risks to society in general, such as in essential services, the law prohibits recourse to industrial action and disputes will have to be resolved through arbitration.
Labour disputes can pose very serious problems in any organisation. While the distinction between disputes of right and disputes of interest may have legal significance, it has little economic significance.
Any workplace dispute will result in loss of production, loss of market share, loss of public confidence, poor motivation and low morale of employees and even closure of the organisation.
Therefore disputes need to be prevented and settled as early as possible by making use of the dispute resolution mechanisms provided for in our labour laws.
Isaac Mazanhi is a labour analyst
writing in his own capacity.