Thursday, December 4, 2008

Employment Law - Dispute of Rights v Dispute of Interest

In the case of Polokwane Local Municipality vs SALGB & Others (2008) 8 BLLR 783 this issue was brought to light.

The facts of this case were that the employee had been employed since 1992 as a Chief Clerk. In 1999 she applied to have her post upgraded due to the fact that there had been a gradual addition of her responsibilities to her post over the years. A more senior post was created one of the requirements of which was a B. Com degree which the employee did not have. Although she was shortlisted for the position it was awarded to someone else.

The employee then objected that the employer had failed to upgrade her position and it had failed to pay her an allowance for performing duties allocated to the higher position. The arbitrating commissioner agreed with the employee and held that the employee had committed an unfair labour practice.

The matter was however taken on review to the Labour Court which set aside the commissioner's findings. The court drew the distinction between a dispute of right and a dispute of interest. A dispute of right concerns the infringement, application of or interpretation of an existing rights contained in a contract of employment. A dispute of interest however involves the formulation of new rights such as higher wages. Disputes of rights are resolved by adjudication whereas disputes of interest are resolved by means of negotiation and industrial action if necessary.

The court found that in demanding that her position be upgraded the employee was seeking to create a new right through adjudication. The commissioner did not therefore have the jurisdiction to arbitrate the matter.


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