There is no straightforward and universally endorsed definition of the concept dispute just as the challenge already been seen with ADR above. This is so because there are
as many definitions as those that seek to define it.315 This makes dispute a complex
concept to define. Generally, according to Thesaurus dictionary of English language the term dispute refers to ‘any argument, disagreement, quarrel, difference of opinion, heated discussion, clash, or raw between two or more persons about matters of
interest between them’. The etymology316 of the term dispute is traceable to 1300
century from the Old French term disputer which is also traceable to the 12th century
meaning to ‘dispute, fight over, contend for, discuss.’ It is also attributable to the Latin
term disputare which means to "weigh, examine, discuss, argue, and explain."317The
term disputare is derived from to words “dis” and ‘putare’ whereat dis means
"separately"; putare means "to count, consider," which originally meant "to prune" or "to cut, strike, stamp"). When used in Vulgate the sense "to argue or contend with
words or to stand out.318 Other related terms used alongside dispute
are ‘disputable; disputed and disputing.’ The most concise definition319 of a dispute,
defines it as ‘a disagreement between two or more individuals or groups.’320 These
definitions while shedding light on the subject but do so generally without contextualising a dispute at the workplace.
A more precise definition categorised as legal disputes involves “conflicting interests
in which case one person usually has something the other person wants and both parties make claims of entitlement. Both claims as a rule cannot be satisfied and as a
315 Lippman Law and society (2015) 212 (See Zack (1997) 1 and Nader and Todd (1978) 14)
316 Etymology Online Dictionary https://www.etymonline.com/word/dispute. Date of use: 26th October
2017
317 Ibid 318 Ibid
319 Lippman (2015) 212
320 Etymology Online Dictionary https://www.etymonline.com/word/dispute. Date of use: 26th October
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result there is a ‘true conflict.’321 According to Wiese322a conflict arises when parties
perceive a divergence in their needs and interests.
However, the forgoing does not seem to resolve the quagmire that usually collects around the lack of clarity of the difference between a dispute and a grievance on one
hand and conflict on the other.323 Two studies that attempted at resolving this challenge
were conducted in 1978324 and 1981,325 respectively. Miller and Sarat326 tendered the
view that ‘a dispute begins as a grievance’. In this case ‘a grievance proceeds from an aggrieved party’s belief that s/he (or a group or organisation) is entitled to recourse which may have someone grant or deny.’ It can be gleaned in this rendering of a dispute that it escalates to float as a dispute but on its bottom, it is founded on a
grievance. However, Nader and Todd327 had earlier perceived ‘conflict’ as the missing
piece between a grievance and dispute, as discussed below. This study tends to see a dispute as the tipping point of a conflict and grievance in which a third party is roped in because the two parties failed to resolve their differences amicably while they were still grievances and conflicts. This is the rendering of a dispute in tandem with Miller
and Sarat’s328 conceptions of it. It underscores the fact that grievances and conflicts
happen within an organisation and could be resolved through existing policies and procedures, if any, and in the process avoiding the hanging of an organisation’s dirty
linen329in public which is essentially what disputes and dispute resolution does through
roping in an outside third party. The approach sees grievance and conflict as those ADR levels that are controlled by the parties within the organisation while at the dispute level a third party is roped in because the internal systems within the organisation have supposedly failed to achieve settlement. It can thus be concluded that a dispute is a manifestation of an unresolved grievance and conflict which requires the involvement of a third party to reach resolution. Before discussing the resolution of disputes, it is important for this study to consider the types and nature of industrial disputes,
321 Lempert & Sanders An invitation to Law and social science (1986) 137 322 Wiese (2012) 3
323 Wiese (2012) 3
324 Nader & Todd The Disputing Process: Law in Ten Societies (1978) 14
325 Miller & Sarat Grievances, Claims and Disputes: Assessing the Adversary Culture (1981) 52 326 Ibid
327 Nader & Todd (1978) 14 328 Ibid
329 Dirty linen simply means an organization exposing its internal inadequacies to third parties through
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considering disputes of rights, disputes of interests, individual and collective disputes, and genuine disputes.
2.2.3.1 Types and Causes of industrial disputes
Essentially five types of disputes have been identified, namely, (1) dispute of right330
and (2) dispute of interest,331 (3) individual, (4) collective disputes332 and genuine
disputes. Lotter and Mosime333warn that the distinction drawn between what is termed
‘dispute of right’ and ‘dispute of interest’ is ‘somewhat controversial’ particularly in so far as a differentiating line is inscribed between them.334 Dispute of right335 entails a dispute that arises when a party to an employment contract is attempting to enforce
rights enunciated by a contract of employment or conditions of employment.336 A
dispute of right will therefore arise from (1) a contract of employment, (2) legitimate expectation, (3) recognised agreement, (4) negotiated settlement, (5) statutory
provision and (6) any other reasonable ground that may be relied upon.337On the other
hand, a dispute of interest is an attempt by a party to create and enforce new rights that do not yet exist. Individual disputes arise when individual employees attempt to negotiate for better conditions of employment either in the form of dispute of right or dispute of interest.338 Collective disputes on the other hand are disputes that arise when a collective such as a union fights for the rights of its members to have better
conditions of employment either in the form of dispute of interest or dispute of right.339
In Trans-Caledon Tunnel Authority v CCMA & others340matter, the court provided for
a clear distinction between disputes of right and dispute of interest. The learned Judge specifically proffered that ‘disputes of interest’ claims are limited to situations where
330 Dingake Individual Labour Law in Botswana (2008) 119 331 Ibid
332 Steadman Handbook on Alternative Labour Dispute Resolution (2011) 13 333 Lotter and Mosime Arbitration at work (1993) 3
334 Ibid
335 Dingake Individual Labour Law in Botswana (2008) 119 336 S 2, Act 15 of 2003 [Chapter 48:02]
337 Dingake (2008) 119
338 Roşioru Labour dispute mediation in Romania: an alternative way? (2017) 17, See Law No. 62 of
2011, Romanian Labour Code
339 Roşioru (2017) 17
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employees are intent at establishing a new right or benefit not presently enjoyed.341 In
the result, the attempted use of unfair labour practice provisions to pursue such ends as occasion to assert an entitlement to new benefits, new forms of remuneration or new policies not previously provided by the employer will not be tenable. The court further ordered that where a claim about the unfair conduct by an employer is made in relation to the existing employment structure or conditions of employment, existing policies or past practice, it could be referred to the tribunal CCMA as an unfair labour
practice relating to existing benefits hence qualifying as a dispute of right.342Another
view of disputes is proffered by Benjamin and Gruen343who conceived the concept by
the use of the phrase genuine disputes. Benjamin and Gruen344 identified four main
disputes which they term “genuine disputes”, namely: unfair dismissal disputes, unfair labour practice disputes: mutual interest and severance pay. This study seeks to ascertain if the ADR disputing process produces efficacious outcomes – time saving, cost saving, client satisfaction, fast settlement and enforcement. This is the subject of the next section.