A PRE - TRIAL MINUTE GUIDELINE ISSUED BY THE JUDGE PRESIDENT OF THE LABOUR APPEAL COURT AND LABOUR COURT IN RESPECT OF DISCRIMINATION.
A guideline issued by the Judge President of the Labour Court relating to the issues that a pre-trial minute relating to discrimination must deal with and the manner in which they must be dealt with in such a pre-trial minute.
This file had come before a Judge in chambers. After perusal of this file by Judge ______________ the parties in this matter directed to deal with the matters set out below in their pre-trial minute or supplementary pre-trial minute in addition to any other matters which they are required to deal with in terms of the rules of Court:-
1. If the applicant alleges discrimination:
1.1 Does the applicant allege direct discrimination, and, if so, on what ground or grounds?
the facts upon which such alleged discrimination is alleged must be recorded;
the unfairness of such alleged discrimination must be recorded.
1.2 Does the respondent admit having committed the act of direct discrimination complained of, but wishes to justify it? If so, this needs to be recorded and the facts and grounds upon which such act of discrimination is sought to be justified must also be recorded.
1.3 Alternatively, if the respondent denies the allegations, it must record this and the basis for such denial.
2. Does applicant allege indirect discrimination on the part of the Respondent? If so:
2.1 the facts upon which this allegation is based must be recorded in the minute, as well as why such discrimination is alleged to be unfair.
2.2 does respondent admit the alleged act of indirect discrimination but wishes to justify it? If so, the respondent must state the basis of its justification.
2.3 If the respondent denies indirect discrimination the fact and grounds of such denial in the light of the applicant’s averments must be recorded.
3. Is there agreement on the overall onus to prove? The parties must record such agreement or alternatively their standpoint to this question.
4. In so far as the applicant claims compensation for the alleged act(s) of discrimination, it must state how the amount of compensation is calculated and how it is connected to the alleged act of discrimination. The respondent must respond to this as well.
The parties are reminded that a pre-trial minute must be prepared and structured in such a way that a person should not have to refer to other documents in order to understand what each party’s case is and it should have a clearly identifiable list of common cause facts as a list of disputed allegations of fact.