Dismissals and the Federal Conciliation and Arbitration System (original) (raw)
Related papers
Deregulating Voluntary Dismissals
SSRN Electronic Journal, 2002
Federal Rule of Civil Procedure 41(a) and its state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without tnjudice. Within certain windows of opportunity, plaintiffs can take this unilateral action without the permission of the defendant or of the court, and without any conditions attached. When those windows are closed, plaintiffs can still seek dismissal with the approval of the defendant or of the court. This regime is problematic: giving plaintiffs this unilateral power is an anachronism in an age of managerial judging, and can be considerably inconvenient for defendants. Likewise, the case law has developed an unwieldy set offactors to guide trial courts in attaching conditions to the plaintff seeking dismissal of a case. This article advances several ways to rationalize voluntary dismissals. While Federal Rule 41(a) and its state law counterparts need some refinement, this article endorses their allowing a small window of opportunity at the beginning of a suit for plaintiff to dismiss without prejudice, with no conditions attached. When that window closes, plaintiff can still obtain dismissal of her suit, either by obtaining the defendant's or the court's permission. With regard to the latter, the presumptive sole condition should be an award of reasonable attorneys'fees from plaintiff to defendant. Among the advantages of this condition is that it is much easier to administer than the current standards, fits comfortably within the language of Rule 41(a), avoids some of the pitfalls of loser pay proposals, and in part codifies the existing practice of many courts.
Case Notes: Jurisdictional Quandaries Triggered by a New Variant for Dismissal
South African Mercantile Law Journal
While the imperative tone of the Constitutional Court (CC) in Steenkamp v Edcon Ltd (2016) 37 ILJ 564 (CC) (Steenkamp I) leaves no doubt that the Labour Relations Act 66 of 1995 (LRA) does not contemplate invalid dismissals or an order declaring a dismissal invalid, or of no force or effect, the extent of the Labour Court’s (LC) jurisdiction to grant appropriate relief declaring dismissals unlawful and invalid because they constitute encroachment of the applicants’ fundamental rights is a vexed question. In Steenkamp I it was decided that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), there is no remedy under the LRA. What this means is that the LC lacks jurisdiction to make any determination of unlawfulness. A multi-layered and complex jurisdictional problem arose in Chubisi v SABC (SOC) Ltd (2021) 42 ILJ 395 (LC) (Chubisi) where the question was whether Ms Chubisi could obtain a declaratory order that the termination of her contract of employment wa...
This paper aims to analyse the principles and application of UK employment law relating to Unfair Dismissal. In order to do this, the paper considers the legislative provisions in place in the context of the common law situation before their introduction. Next, the paper moves on to contrast the law in theory (what appears in the legislation), and the law in practice (how it is applied by the courts). The work demonstrates that the courts have taken the approach of watering down unfair dismissal legislation in a worrying way; this is a concern both from the point of view of employees who have had their rights somewhat curtailed and in general because there are compelling justifications for the unfair dismissal legislation as laid down by Parliament. Clashes between the statutory and common law approach to employee protection; It should be noted when considering the UK rules on the unfair dismissal that before they were brought into operation, employees enjoyed very little protection under the common law in the face of the action for wrongful dismissal (Sutherland 2005:1). Analysing the common law position puts into context the way the courts have approached the statutory rules on unfair dismissal and highlights how important it is for a robust set of rules to exist from the point of view of employees. Under the common law rules of wrongful dismissal, the employer could terminate the employee's contract without fair process and without giving a reason – the only constraint available existed if the parties had worked one into the employment contract (Sutherland 2005:1). What the courts provided in the way of protection was simply a review of whether the employer had adhered to the contractual terms – there was not overriding duty placed upon him and the most common concern was whether adequate notice was given (Anderman 2004:29). This rule could be traced back at least to the
University of Pennsylvania Journal of Constitutional Law, 2020
One of the earliest steps in civil litigation is the motion to dismiss under Rule 12(b). Dismissal offers the opportunity to preemptively dispose of a given claim that does not present a legally-judiciable case or controversy prior to expending time or energy on matters like discovery or a trial. Everyday talk, of course, is not bound by such procedural rules. Yet in normal conversations we often engage in something very similar to legal dismissal. When faced with discomforting claims our instinct is not to engage in reasoned deliberation over them. Instead, we frequently brush them aside without considering their merits. By delegitimizing the claim as entirely unworthy of substantive public deliberation, we need not reason over it. This carries significant dignitary harms. Who we talk and listen to is an important marker of who we consider to be our moral and political equals. The decision to dismiss—casting the speaker as wholly unworthy of engagement and entirely incapable of transmitting useful knowledge—implicitly (sometimes not so implicitly) rejects that equal status. It represents an “epistemic injustice”—a wrong aimed at one’s status as a knower. Yet despite being a ubiquitous part of everyday conversation, this broader understanding of dismissal has not been independently identified or assessed. Dismissal is thus an important phenomenon in all deliberative forums, not just courts. But courts do possess one characteristic that makes them worth assessing independently: they are a site where—some of the time—deliberators have to listen. This places them on very different terrain than politicians, pundits, or everyday citizens, all of whom are relatively free to brush aside discomforting claims at their discretion. Courts may play an important role in protecting unpopular groups not because judges are wiser, less prejudiced, or more insulated from democratic pressures, but simply because courts offer a space where—some of the time—arguments must be heard and reasons must be given. This quality is not the whole game for marginalized groups. But it is not nothing either. It is a significant and valuable epistemic niche that courts can occupy in a broader deliberative system.