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Chapter 8 - Labour Law

Disputes and ways of Settling Disputes

What is a dispute?

A dispute is any serious disagreement between two sides (these sides are also called the 'parties' to the dispute). For example, there could be a dispute over a problem of discipline in the workplace, over complaints (also called 'grievances') which workers have, or over dismissals. There can also be disputes over wages and other working conditions.

There are different kinds of disputes. You can have a dispute about making new rights, for example workers wanting to get paid higher wages or the employer bringing in a new pension or provident fund scheme that workers must belong to. These disputes are also called disputes of interest (in other words, disputes about workers and employers having different interests). Advice offices do not often deal with disputes of interest. These disputes are usually handled by a union and are the subject of negotiation and possibly industrial action.

The Labour Relations Act (No 66 of 1995) describes structures and processes which can be used to resolve disputes of interest. The Act also governs the procedures for taking industrial action.

You will often deal with disputes over rights which already exist in contract, law, agreement or in custom and practice.. These kinds of disputes are also called disputes of right. They usually involve an unfair labour practice (such as racial or sexual discrimination in the workplace, sexual harassment, and so on) or an unfair dismissal (for example retrenching workers without consulting with the workers and union).

The Labour Relations Act sets out how disputes over rights in the workplace must be handled.
The Employment Equity Act (No 55 of 1998) (EEA) aims to create an environment of equality and non-discrimination in the workplace. It sets out how discrimination will be dealt with in the workplace.

See Labour Relations Act
See Employment Equity Act

A dispute of right can also happen when an employer or worker doesn't obey employment terms and conditions, for example in the Basic Conditions of Employment Act, a Bargaining Council Agreement or other collective agreement, or a Wage Determination or sectoral determination, or a Ministerial exemption. An example of such a dispute is if an employer doesn't give proper notice to a dismissed worker or if leave pay is not paid out. Then it is a matter of enforcing the relevant law.

Enforcement and disputes about terms and conditions of employment that fall under these laws are covered in the section called LAWS ABOUT TERMS AND CONDITIONS OF EMPOLYMENT.

See Laws about terms and conditions of employment

Solving labour problems as a paralegal

If the worker belongs to a union, always inform the union. The union may take the matter forward, or the union at least needs to know about the matter.

If the worker does not belong to a union, the worker may want to join an appropriate union if one exists, or a union which organises in the sector the worker is in may be willing to take the case up.

Dispute of rights (about legal rights which workers already have)

If it is a matter of enforcing a right under:

• the Basic Conditions of Employment Act (BCEA)
• a collective agreement under the BCEA
• a sectoral determination or a Wage Determination
• the Occupational Health and Safety Act
• Approach the employer directly to try to get the employer to give the worker the right.
• If the employer refuses to give the worker the right, complain to the Department of Labour and the Department will enforce the law.
• A complaint should be sent directly to an inspector of the Department. A request for a ‘Compliance order’ should be sent to the Department.
• If you are later than 90 days then you can submit an application for condonation for the late submission on a special application that you can get from the CCMA.

See Enforcement of the BCEA
See Enforcement of a workplace-based collective agreement
See Enforcement of a sectoral determination
See Enforcement of the OHSA

If it is a dispute of rights under:

• the Basic Conditions of Employment Act (BCEA)
• a collective agreement under the BCEA
• a sectoral determination or a Wage Determination
• the Occupational Health and Safety Act
• Approach the employer directly. You may be able to negotiate an agreement between the worker and the employer.

See PARALEGALS AND ADVICE OFFICES, The process of negotiating
See PARALEGALS AND ADVICE OFFICES, Example of the stages of the negotiation process

• If you have no success, refer the dispute to the Department of Labour.

See Settling disputes under a sectoral determination

If it is a matter of enforcing a Bargaining Council Agreement or it is a dispute of rights under a Bargaining Council Agreement:

• Approach the employer directly. You may be able toget the employer to comply with the terms of the Agreement, or resolve the dispute by negotiating between the worker and the employer.
• If you have no success, refer the problem to the Bargaining Council for enforcement or dispute resolution.

See Enforcement of a Bargaining Council Agreement
See Settling disputes under a Bargaining Council

If it is a matter of enforcing a right or a dispute of rights under the Labour Relations Act (LRA) where no bargaining council exists in that sector:

• Approach the employer directly. You may be able toget the employer to comply with the LRA, or resolve the dispute by negotiating between the worker and the employer.
• If you have no success, refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. The CCMA was set up to help employers and workers to resolve disputes quickly, without having to go to court or take industrial action. Clearly, where there is a Bargaining Council with an established conciliation structure, the dispute must be referred to the Bargaining Council for conciliation.

Clearly, where there is a bargaining council with an established conciliation structure, the dispute must be referred to the council for conciliation. If conciliation fails then refer the dispute to arbitration within 90 days of receiving the certificate of failed conciliation from the CCMA.

See Solving disputes under the LRA

Outstanding money owed to worker

The following grievances or problems all relate to outstanding money not paid by the employer to the worker:

• notice pay
• leave pay
• deductions from wages
• underpayment of wages
• overtime wages

A worker has the right to claim money from an employer if the employer has not complied with the terms of the employment contract, Bargaining Council Agreement or other collective agreement, Wage Determination or sectoral determination, or the Basic Conditions of Employment Act. You should always try to sort out problems about outstanding money yourself with the employer or union, before referring the problem to the Department of Labour or the Bargaining Council or the CCMA. Sometimes this is a much faster way to solve problems.

A dispute over a condition covered by the BCEA should be referred for resolution to the Department of Labour. The CCMA will only hear the dispute if the BCEA issue is related to a matter which is being arbitrated by the CCMA (for example, a claim of unfair dismissal is before the CCMA together with a claim for unpaid leave pay).

Workers can make their own civil case in the Magistrates Court or the Small Claims Court to get money that is owing to them. If the employer breaks a contract of employment, then a worker can also sue the employer in a civil court case for breach of contract.

See COURT CASES, Civil claims
See CONSUMER LAW, Breaking a contract

These PROBLEMS will show you what steps to take to sort out the worker's problem:

See PROBLEM 1: Money is deducted from a worker's wages
See PROBLEM 2: Worker wants to claim notice pay and leave pay
See PROBLEM 3: Worker is paid below the minimum wage limit

Dispute of interests (about making new rights)

Paralegals should not be involved in disputes of interest (unless you are part of a union team, or working with labour lawyers). You may have a role in just informing workers about what the law says.

The Labour Relations Act (LRA) sets out structures and processes which can be used to resolve disputes of interest. The outcome of disputes of interest will depend on the relative strength of workers and employers. Each party may use different strategies to win what they want.

Workers can take industrial action, like strikes, work stoppages and go-slows once they have complied with laid down dispute procedures. Workers cannot strike over disputes of rights under the LRA (e.g. unfair labour practices and unfair dismissals).

The LRA governs the procedures that must be followed before industrial action can be taken by workers or by the employer.