Article 53/2021

Labour Edge

How do you determine the true nature of a dispute?


In National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd 2003 (3) SA 513 (CC), (2003) 24 ILJ 305 (CC), at paragraph [52], it was held that:

‘It is the duty of a court to ascertain the true nature of the dispute between the parties. In ascertaining the real dispute, a court must look at the substance of the dispute and not at the form in which it is presented. The label given to a dispute by a party is not necessarily conclusive.  The true nature of the dispute must be distilled from the history of the dispute, as reflected in the communications between the parties and between the parties and the Commission for Conciliation, Mediation & Arbitration (CCMA), before and after referral of such dispute. These would include referral documents, the certificate of outcome and all relevant communications. It is also important to bear in mind that parties may modify their demands in the course of discussing the dispute or during the conciliation process. All of this must be taken into consideration in ascertaining the true nature of the dispute.’

Is it a requirement that each page of an affidavit must be initialled? Is it a requirement that every page of every annexure to an affidavit must be initialled?

The first leg of the test to determine whether or not urgency exists, when an urgent application is brought, requires a court to assess whether an urgent hearing is necessary because the applicant will not be able to obtain substantial redress in the normal course.

Previous articles this year dealt with a zero-tolerance policy when tested positively for alcohol or drugs, as well as a zero-tolerance policy in respect of having tested positive for cannabis. In short, the courts hold the viewpoint that, by means of such policies, an employer is not permitted to create an absolute ‘no go zone’ and, furthermore, held that, at all given times, one of the fundamental questions to be asked, irrespective of the content of such zero-tolerance policy, is the effect of the drugs/alcohol/cannabis on the ability of the employee to do his/her job.