A PRE - TRIAL MINUTE GUIDELINE ISSUED BY THE JUDGE PRESIDENT OF THE LABOUR APPEAL COURT AND LABOUR COURT. IN RESPECT OF STRIKE DISMISSAL MATTERS
By direction of Judge _______________, the parties in this matter are to deal with the matters set out below in their pre-trial minute or supplementary pre-trial minute in addition to any other matters set out below in their pre-trial minute or supplementary pre-trial minute which they are required to deal with in terms of the rules of Court:-
1. the parties must specify if the identity of the employer and the identities of the employees are admitted. If they are not, each party must indicate the basis for its position in this regard.
2. the parties must seek to agree on whether there was a dismissal and, if so, the date of such dismissal. If there is a dispute about whether there was a dismissal, each party must state the basis for its position.
3. the parties must seek to reach agreement on the following about the employees:
(a) dates of engagement;
(b) positions held at the time of the dismissal;
(c) the wage rates of the employees at the time of their dismissal.
4. the parties must further seek to agree on:
(a) whether the employees were members of a trade union and if so, which one, and whether there is a collective agreement regulating industrial action.
(b) upon the duration of the strike; what the demand or demands or grievances were which formed the subject matter of the strike and whether these were communicated to the employer, how it was, or they were, communicated and what the employer’s response was to the demand(s).
(c) on which strike procedures, if any, were not followed before the strike and what the strikers’ alleged justification was for not following such procedures if it is common cause that such procedure was not followed. If this is in dispute, the parties must state the basis for their allegations.
5. parties must state the basis on which the employer alleges that the strike was unprotected or illegal, if that is the employer’s case, and the basis on which the employees allege that the strike was legal, if that is their case.
6. parties need to set out
(a) the grounds on which the employees allege that their dismissal was unfair;
(b) the employer’s response to such grounds;
(c) the employer’s grounds for alleging that the dismissal was fair; and
(d) the applicants’ reply to the respondent’s grounds for contending that the dismissal was fair.
7. parties must seek to agree on whether an ultimatum was given by the employer, the duration of such ultimatum and how it was communicated to the employees.
02 May 2001
Labour Appeal Court
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.
5. 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.
PRE- TRIAL MINUTE GUIDELINE IN RESPECT OF A DISPUTE INVOLVING DISMISSAL FOR OPERATIONAL REQUIREMENT (RETRENCHMENT)
A guideline issued by the Judge President of the Labour Court relating to the issues that a pre-trial minute relating to a case of dismissal for operational requirements must deal with and the manner in which they must be dealt with in such a pre-trial minute.
1. The applicant must indicate whether he admits that in general there was a need to retrench( and this is separate from the question whether there was a need to retrench him/her).
2. If the applicant does not admit that there was in general a need to retrench, he/she must state the factual basis for his/her failure to admit this. Once he/she has done so, the respondent must give a response thereto.
3. If the fairness or otherwise of the selection criterial used is in dispute, the applicant must state his/her basis for contending that such selection criterial was unfair. (This is separate from whether or not that selection criterial was applied fairly). The respondent must then give a response thereto.
4. If the fairness or otherwise of the manner in which the selection criteria was applied is in dispute, the respondent must state how the selection criterial was applied and the applicant must state the basis of his/her contention that applying the selection criterial in that manner was unfair. The respondent must give a response to that.
5. If the applicant contends that someone else should have been selected for retrenchment in his/her place due to, for example, length of service and / or skills, he/she should give the respondent the name of such a person and the respondent must give a response thereto.
6. The parties must prepare a supplementary pre-trial minute in which the applicant sets out in what respect he/she alleges that the termination of his/her service was procedurally unfair and the respondent sets out its response thereto.
7. Furthermore if the respondent alleges that there was consultation (and if that is one of the issues in dispute) and it has minutes of meetings on which it relies to contend that there was consultation, the parties must attempt to agree whether the contents of such minutes are a true reflection of what transpired at those meetings.
8. If the applicant’s case is that those meetings did not constitute consultation, he/she must indicate the basis of such allegation and the respondent must respond to such basis.
9. If anyone or more of the issues that the parties are directed above to address are not part of either party’s case, that must be stated in the supplementary pre-trial minute.
10. The purpose of the above is not to expand the issues as they may presently appear from the statement of claim, the response thereto as well as the pre-trial minute already filed by the parties but it is to get the parties to apply their minds on such of these issues as may form part of the case of either the applicant or the respondent.
11. Once the supplementary pre-trial minute dealing with the above issues has been filed, the registrar must refer the file in this matter to a Judge for direction whether the matter can be allocated trial dates.
12. The supplementary pre-trial minute must be filed on or before _____________ from the date of the direction.