Types of disputes in an employment relationship
Thursday, 15 September, 2011The Trade Dispute Act of Botswana recognises and defines three types of disputes namely: Dispute of Interest, Dispute of Right, Apprehended Dispute.
The Trade Dispute Act of Botswana recognises and defines three types of disputes namely:
- Dispute of Interest
- Dispute of Right
- Apprehended Dispute
'Dispute of Interest' means a dispute concerning the creation of new terms and conditions of existing terms and conditions of employment. Simply put, a dispute of interest refers to those things the employee wants from the employer even though the employee has no legal right over such things. For instance, wage increases.
The Employer and the Employee will not necessarily come to an agreement on the wage increase per se, as the employee by law has no right to this increase. Ordinarily a dispute will occur and The Trade Dispute Act recognises this right in that Employees finding themselves in this type of dispute are allowed to enforce this right through collective power guaranteed under the Constitution.
'Dispute of Right' means a dispute concerning the alleged infringement of a right flowing from a statutory law, collective agreements or individual contracts or the enforcement of benefit to which the claimant is legally entitled to. For instance, an employee has the right not to be unfairly dismissed or the employee has a right by law to enforce this right where the employer refuses to give way to a right which the employee has in terms of the employment contract or collective agreement.
'Apprehended Dispute' means a dispute that has a potential of harming employees, employers and the community or property. Such a dispute does sometimes exist, but has not been formally been reported to the Commissioner of Labour. Under such circumstances, the Act allows the parties to the dispute to invite the Commissioner to intervene or the Commissioner may at his own initiative, appoint or delegate a mediator and direct him towards helping the parties to reach a settlement of dispute. The parties may by their own efforts reach a settlement, if no settlement, the mediator may advice the parties to incorporate the terms of settlement into an agreement or collective agreement.
Examples of Trade Disputes in an employment relationship include but not limited to:
- Dispute over organisational rights
- Dispute over interpretation of a collective agreement
- Dispute over interpretation of closed shop and agency
- Failure to agree on picketing procedure
- Dispute over wages on an essential service
- Failure to agree on an issue at work place forum which is the subject of decision making
- Unfair dismissal (misconduct and incapacity)
- Unfair conduct of an employer relating to promotion, demotion, training or provision of benefits, unfair supervision or failure to re-instate or re-employment in terms of agreement
- Breach of freedom of association clause (e.g. threat to dismiss because of union membership)
- Refusal to admit party to a bargaining council
- Material breach or undermining right to picket
- Automatic unfair dismissal
- Dismissal for participating in an unprotected strike
- Dismissal for operational requirements; and Unfair discrimination against employee.
Procedure of resolving the first two disputes. The Trade Dispute Act provides two basic steps of resolution of trade disputes in the workplace. The procedure may be through
- Arbitration and or adjudication by the Industrial court or industrial action.
Mediation is a process where the mediator has to make a genuine attempt to resolve the dispute within 30 days of the referral. The mediator is a neutral person who does not decide on what is right or wrong, but attempts merely to assist the parties to reach an agreement. The mediation process can include fact-finding or making recommendations to the parties. It is up to the mediator to decide on which is the most appropriate process. The dispute referred to mediation must be lodged within 30 days of the dismissal or if it is a later date, the employers final decision to dismiss the employee (e.g. the employer rejects the employee's appeal).
The second step is that of Arbitration or Adjudication at the Industrial Court or through an industrial action. If the matter is referred to Arbitration, the parties to the disputes must agree to arbitration. The arbitrator is a neutral party who hears both sides of the dispute and then makes a decision about who is right. The arbitrator will issue an arbitration award which is binding to the parties within 60 days after referral of the dispute. There is no appeal against a decision of the arbitrator, but review might be possible.
The arbitration award must give brief reasons for the decision within 14 days of the conclusion of the arbitration proceedings. If the parties refer the dispute for adjudication at the Industrial Court, such disputes must be referred within 90 days after the mediation process has taken place.
Some disputes go to the Industrial Court for a decision instead of adjudication. A party can appeal a decision of the Industrial Court to the High Court if leave to appeal is granted. Alternatively, parties to the dispute may embark on an Industrial action (strike or lock-out) if the Act does not provide that the dispute may be referred for arbitration or adjudication by the Industrial Court.
Where the Employer does not comply with an arbitration or Industrial Court award issued in favour of the employee, an arbitration award may be certified to be made an order of court. In other words the Sheriff of the Court can seize the other party's goods and sell them to raise the money. Other awards such as reinstatement orders must be enforced through contempt of court proceedings in the Industrial Court. * Prepared by Advocate Mpho Ngwato email@example.com