CMAC

Code of Good Practice on Resolution of Disputes at the Workplace

INDUSTRIAL RELATIONS ACT

CODE OF GOOD PRACTICE: RESOLUTION OF DISPUTES AT THE WORKPLACE

1. INTRODUCTION

1.1. This code is published in terms of Section 109 of the Industrial Relations Act.

1.2. This Code applies to employees, employers and their organisations.

1.3. The objective of the Code is to enable employees, employers and their organisations to resolve dispute at workplace
as effectively as possible. It is accordingly applicable to Government as an employer in the public sector.

1.4. This Code is a guideline and must be flexibly applied. It may be departed from in appropriate circumstances.

2. PRINCIPLES OF EFFECTIVE DISPUTE RESOLUTION

2.1 As effective system for processing workplace disputes is essential for sound labour relations and the proper
functioning of an organisation.
This system should incorporate as many of the principles contained in clause 2 as possible.

2.2 Conflict is an inevitable consequence of the employee/ employer relationship. The parties should use their best
endeavours through discussion, consultation and negotiation to resolve any disputes which may occur, and must deal
with each other in good faith in seeking mutually acceptable solutions to disputes. They should consult each other when
they anticipate that disputes may arise.

2.3 Employers/ Employees and their organisations should treat one another with appropriate sensitivity and respect, and
contribute towards a constructive working environment within an organisation. They should recognise that the workplace
often entails working under stressful conditions and in pressurised circumstances, and they should use their conflict
resolution skills in making genuine attempts to resolve disputes at the workplace.

2.4 The processing of a dispute must not prejudice an employee’s employment in any way. The parties must recognise
each other’s rights to utilise available systems and procedures to resolve disputes that occur.

2.5 An employee must be given the opportunity to be assisted by a fellow employee in processing a dispute at the
workplace. This fellow employee may be a trade union, staff association or works council representative. In certain
circumstances, an employee should be entitled to be assisted by a person from outside the workplace. For example who
is able to assist the employee. A shop steward may be given the right to be represented by a union official in these
proceedings.

2.6 Employers, employees and their organisations should attempt to deal with problems quickly and as close to their
source as possible. This prevents conflict from having the space and time to escalate.

2.7 Employer, employees and their organisations must address the root causes of conflict, and not just the outward
symptoms of the problems.

2.8 Employers, employees and their organisations must recognise the extent to which the nature of the dispute influences
the suitability to different dispute resolving mechanisms. For example, a dispute over the interpretation or application of a
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 CMAC

party’s right may be best suited to being resolved through some form of adjudication.

2.9 Employers, employees and their organisations must recognise the need for an effective dispute management system,
to deal with all disputes that may arise.

3. THE FRAMEWORK FOR AN EFFECTIVE DISPUTES SYSTEM

3.1 Employers, employees and their organisations should attempt to use consensus seeking mechanisms to resolve all
disputes at the workplace. This allows for a solution to be negotiated which is accepted by all parties and which received
the necessary commitment to ensure effective implementation and a lasting solution to the problem. The process of
achieving consensus may also often contribute to the growth of a constructive relationship between the parties.

3.2 It should be recognized that conciliation and other forms of facilitation are an intergral part of the consensus seeking
process in attempting to resolve disputes. Accordingly, if parties ate unable to negotiate a solution through their own
efforts, they should not automatically jump to a consideration of adjudication and industrial action alternatives as a
means of resolving a dispute. It may be useful to involve an outside person as a conciliator or facilitator in order to assist
the parties in attempting to achieve consensus.
3.3 In the event that consensus seeking mechanisms are not successful in resolving disputes, consideration then needs
to be given to other options. This may require an identification of the nature of the dispute involved and the following
distinction between disputes of right and disputes of interest may be useful.

3.3.1. a dispute of right may be described as a dispute arising from the breach of contravention of a law, contract of
employment or collective agreement. For example, a dispute over the fairness of an employee’s dismissal.

3.3.2. a dispute of interest on the other hand cannot be resolved through enforcing legal rights. The parties are, through
negotiation, attempting to create a right by agreement with the other party. For example, a dispute over what next year’s
wages are going to be.

3.4 If the parties are unable to resolve a dispute through consensus, consideration should be given to referring disputes
of rights to some form of adjudication.

This may be by a mutually agreed arbitrator or fact finder, depending on the issue involved, or the utilisation of dispute
resolving mechanisms available in Labour legislation e.g. referring a dispute to the Industrial Court or to arbitration
through the Commission.

3.5 Whilst it may be possible to resolve interest disputes through adjudication (e.g. the resolution of a wage dispute in an
essential service through arbitration), consideration is often given to the use of lawful industrial action (strikes and
lockouts) as a measure of last resort to resolve these disputes. This action should be regarded as lawfully sanctioned
temporary applications of economic pressure in the collective bargaining process to resolve disputes. The purpose
should not be to unnecessarily damage the organisation to the detriment of the parties.

4. TYPES OF DISPUTES

4.1 In implementing an effective dispute management system consideration must be given to disputes resulting from the
following:-

4.1.1. disciplinary action;

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4.2 Disputes resulting from disciplinary action:

4.2.1. Fair and effective disciplinary procedures should be established at the workplace to ensure that discipline is
handled in terms of a fair procedure and that the disciplinary decisions taken by management are fair. Consideration
should be given to the Code of Good Practice: Termination of Employment in this regard.

4.2.2. If a dispute results from disciplinary action taken by an employer against an employee, the parties may agree to
refer this dispute to some form of adjudication e.g. final and binding arbitration by an agreed arbitrator. If this is not
agreed, the parties should utilise available mechanisms in the Industrial Relations Act for processing these disputes.

This may involve the referral of a dispute to conciliation through the Commission, and if that is not successful, to refer the
dispute to the Industrial Court or to arbitration at an earlier stage, it dispenses with the need for the parties to process this
dispute through conciliation and adjudication in accordance with the Industrial Relations Act.

4.3 DISPUTES RESULTING FROM INDIVIDUAL

4.3.1. It should be recognized that, depending on the nature of the grievance, it may be appropriate to utilise informal
mechanisms or a formal procedure to resolve a grievance. An employee should be under no pressure to accept one or
other option, and the employee must be entitled to decide which option to use.

4.3.2. it may be sufficient for an employee to be able explain the nature of a grievance and to give the organisation or the
person against whom the grievance has been lodged the opportunity to explain conduct or decisions taken. A grievance
of this nature may for example be resolved by a person being given the opportunity to apologise for something and to
provide a commitment that it will not happen again.

4.3.3. a formal procedure resolving a grievance should be available and should:-

(a) specify to whom the employee should lodge the grievance;

(c) allow the person to refer the grievance to a more senior level within the organisation, if it is not resolved at the lowest
level.

4.3.4 if a grievance is resolved, the terms of resolution should be recorded in a written agreement and signed by the
parties to the agreement.

4.4 DISPUTES RESULTING FROM COLLECTIVE GRIEVANCES:

4.4.1 Structures should be established with an organisation to allow employee and employers to raise collective
grievances. This may be through a system of regular meetings (e.g. monthly) between employer and employee
representatives, including representatives from trade unions or staff associations. These negotiations forums should
incorporate a disputes procedure to deal with issues that are not resolved through consensus.

This procedure may involve the formal declaration of a dispute followed by a number of compulsory meetings between
the parties within an agreed time frame, failing which the parties would be free to utilise dispute resolving mechanisms
available on labour legislation.

4.5. Disputes resulting from the negotiations of collective agreements:

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4.5.1 Representatives of employers and employees may agree to negotiate on a regular basis (e.g. annually) over the
terms and conditions existing at the workplace. The periodic review of wage increases may be a part of these
negotiations. The structures and system referred to in clause 4.4. of this Code may be appropriate for dealing with
disputes arising out of these negotiations.

4.6 In all types of disputes, if the dispute is not resolved at the workplace, the parties to the dispute should then utilise
dispute resolving mechanisms provided for in labour legislation. In utilising these mechanisms, the date when the dispute
is alleged to have arisen should normally be calculated from the time that workplace dispute resolving mechanisms have
been exhausted.

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