Dispute resolution

UNIT 8
 Learning outcomes
After studying this chapter student should be
able to:
• Explain the context and nature of employment
disputes
• Contextualise dispute resolution with respect
to the constitution and international
standards
 Learning outcomes Contd.
• Examine how the Labour Act categorises and
provides for dispute resolution
• Explain the progression of an internal and
external dispute, both individual or collective,
and the various means of resolution, and,
• Appreciate the importance of quick and
effective dispute resolution in the
employment relationship
 Key vocabulary
• Conflict-opposition /clash in ideas between two
parties
• Dispute- any misunderstanding between
employer or employers’ organisation and an
employee or trade union relating to a labour
matter
• Conciliation-mediating a dispute; conducting a
fact finding; making an advisory award if it will
enhance the prospects of settlement
• Arbitration-engaged on after conciliation has
failed; arbitrator’s verdict is binding.
 Key vocabulary
• Dispute –any disagreement between employer and
employee relating to a labour matter
• Dispute of interest- any dispute concerning a proposal
for new or changed conditions of employment but
does not include disputes to be resolved by
adjudication of the Labour Act or other court of law or
arbitration
• Dispute of right-flipside of dispute of interest
• Essential service-a service whose interruption could
endanger the life, personal safety or health of the
whole or any part of the Namibian population.
 The concept and nature of labour
disputes
• A distinction between conflict and dispute to
be made
• Conflict confined within the organisation
• Merely referred to as conflict
• processes to resolve conflict are used
• Unresolved conflict is a dispute
• A third party used in solving a dispute
• Third party – conciliator /arbitrator
 The concept and nature of labour
dispute. Contd.
• Dispute differentiated by right or interest
• A dispute of right arise from an actual
entitlement or obligation
• A dispute of interest arise from a perceived
entitlement or obligation
 Dispute of right
• Occurrence of an actual entitlement or
obligation in contract of employment; collective
agreements, in pieces of legislation, as well as
regulations governing the employment
relationship
• Example of dispute of right, when employee
would like to take his / her 21 consecutive days
annual leave and the employer is only willing to
grant him or her 10 days annual leave
Issues that may give rise to dispute of
right
• Employer’s refusal to:
- Abide by any law or agreement
- Implement statutorily determine conditions of
employment
- Implement conditions of employment set out in a CA.
- Implement an arbitration award
- Abide by processes and procedures legally determined
or set out in agreements
- Abide by the common law
- Negotiate changes to terms and conditions of
employment
 Dispute of interest
• Might arise when party to employment
relationship feels they should be, but are not yet
entitled to something
• Should entitlement occur after negotiations and a
signed agreement, it becomes a right.
• Issues bargained for not yet regulated by any law
or agreement may lead to dispute of interest
• These may include new wage levels, new
conditions of work etc
 Processes of handling disputes
• Most labour relations systems provide these;

Dispute of Arbitration or
Consultation Conciliation adjudication in
rights
Labour Court
Processes of handling disputes

Disputes of Arbitration
interest Negotiation Conciliation Or Strike
/lockout
 How disputes can be minimised
• Employers to be pro-active and seek cultures that minimise
occurrence of disputes
• Tips;
- Effective communication
- Must have tools to deal with conflict, for e.g. grievance and
discipline procedure
- Consultation and employee involvement
- Staff forums; joint working groups, employee consultative bodies
etc.
- Motivate employees and encourage commitment to organisation
- Establish workplace forums
- Avoid any form of discrimination
- Provide training and development to empower employees
 Dispute resolution under the Labour
Act
• The objective of the LA is to practice
constructive and harmonious labour relations
• It therefore creates a comprehensive
framework of workplace disputes
• The Act also empowers and mandates the
Bargaining and statutory councils to resolve
disputes
 Namibia Labour Act
`Part IX: Disputes between Employers or
Registered Employers, and employees or
registered trade unions
 Section 74: Reporting of disputes
• Any person part to a dispute may report it
• Reported by notice in writing
• Commissioner may determine in what form
to report
• Copy of such notice submitted to all other
parties involved
 Contents of the notice
• The names and addresses of involved parties
• Subject matter under dispute
• Facts or circumstances that gave rise to
dispute
• If alleged to be dispute is dispute of right, then
the grounds on which so alleged to be given
• The steps taken to try to resolve the dispute
given
Altering existing CA or any agreement
• Employer party to a dispute involving the above,
upon receipt of notice shall restore the CA
• If the notice has been on a date not later than 30
days after such alteration has been effected or a
restraint from effecting the intended alteration
until the dispute is resolved is granted, the
employer shall refrain from such action.
• An employer who fails to comply with the above
provision shall be guilty of an offence and on
conviction be liable to the penalties which may
be imposed by law for contempt of court.
 Section 75: Establishment of
conciliation boards
• As soon as he/she receives the notice the
commissioner establishes a conciliation board for
the period as from time to time will be
determined by the parties to the dispute by
mutual agreement
• The board shall consist of a Chairman not party to
the dispute
• It shall consist equal numbers of persons from
each party/or 3 members each from each party
determined by the Commissioner.
Establishment of conciliation boards.
Contd.
• Any casual vacancy by death on conciliation board shall
be filled mutatis mutandis in accordance with
provisions of sub-section (1)
• Commissioner shall not establish a conciliation board
as provided by sub-section (1), unless he/she is
satisfied that parties to the dispute have taken all
reasonable steps to resolve /settle the dispute in
question or until such a time as he/she is so satisfied.
• Member of conciliation board must not be a civil
servant especially the Chairman-will be paid travel and
subsistence for travel for work related to conciliation
board activities
Establishment of conciliation boards.
Contd.
• Admin work for conciliation board conducted
by Ministry of Labour and ,Manpower officers
• Terms of reference of conciliation board
determined by Chairman after consultation
with the parties to the dispute, with due
regard to the subject matter.
• The Chairman determines the venue and time
of the first meeting
Establishment of conciliation boards.
Contd.
• The board decides the place and time of the next
meeting
• The board may also make rules of procedures and
how meetings are held
• No communication by any person in the course of
any proceedings of a meeting of a conciliation
board shall be admissible in evidence in any court
proceedings instituted or any arbitration
proceedings held in terms of the provisions of the
Labour Act; except with the consent in writing of
the person with such communication.
 Section 78: Resolved disputes
• If persons to a dispute agree/resolve the
dispute before or after establishment of a
conciliation board, they will prepare and sign a
memorandum of agreement.
• If parties desire, they will submit a copy of the
memorandum to the Labour Commissioner
for registration as if it was a collective
agreement.
 Section 79: Unresolved disputes
• If dispute is not resolved by conciliation, arbitration is
resorted to.
• If dispute of rights, any party to the dispute other than
the party who refused or failed to take part in the
proceedings of the conciliation board may apply for an
order for arbitration from the Labour Court
• If the matter is about disputes of interest, it is referred
for arbitration
• Any party to such a dispute, subject to the provisions
of sub-section (2) has a right to take action in the form
of strike or lockout in accordance to provisions of
section 81.
Where these provisions do not apply

• Any party providing (Employer or employee),

any essential service which if interrupted or
continually interrupted would endanger the
life, health or personal safety of the whole or
any part of Namibian residents
• to any party who has not complied with the
provisions of section 81 (1)
• Shall not apply to any party to a dispute of
rights which has been referred to arbitration
Research and discussion questions
• Research on unfair dismissals and explain why
these could be termed as unprocedural. Discuss
the repercussions such unfair dismissals have to
the company concerned. (Get an exhaustive list
of these and then for your discussion dwell on
only five (5)).
• Give many examples of strikes that were recently
experienced in Namibia. Classify them as disputes
of interests or disputes of rights. State or explain
why you are either saying they are disputes rights
or disputes of interests.
 Research and discussions
• Research and discuss the functions of the
labour court in Namibia.

*Use the Namibia Labour Act 1992 & Namibia

Labour Act 2007.