Latin Legal Terms

For those who are new to HR or employment law, you would have come across legal phrases or maxims in Latin used by judges and authors which may confuse you as to their meanings. I have listed here a selection of phrases and what they mean which shall hopefully facilitate your understanding the next time you come across them in your reading.

Ab initio – From the beginning. "The contract was void ab initio and therefore cannot be enforced."

Actori incumbit onus probandi – The burden of proof lies on the plaintiff. "The claimant alleged that he was constructively dismissed therefore he must prove his claim in the Industrial Court: actori incumbit onus probandi."

Affidavit – A sworn written statement usable as evidence in court. "The company's witnesses had to sign an affidavit containing their sworn statements that the claimant was indeed dismissed with just cause and procedural fairness,"

Audi alteram partem – Hear the other side. "In an inquiry, audi alteram partem  is a principle of fundamental justice."

Bona fide – Sincere, in good faith. "Although the transfer of an employee is the prerogative of the management, it must be done with the bona fide intention of the smooth-running of the business and not to victimise the employee."

Ceteris paribus – Other things being equal. "Ceteris paribus, the retrenchment of surplus manpower is more substantial in smaller and more highly leveraged firms."

Consensus ad idem – Agreement as to the same thing. "The consensus ad idem of the panel is that on the balance of probabilities the alleged employee is found guilty and a punishment of suspension on half pay for two weeks is recommended."

Certiorari – a writ for judicial review. "The company applied to the High Court for a certiorari to quash the decision of the Industrial Court on the basis of illegality."

Ejusdem generis – of the same class. " Ejusdem generis, 'tradesmen, workmen, labourers or employees’ are all under the same category of individuals under a contract of service."

In camera – in the chambers. "The top management met in camera to discuss the matter of the embattled President of the company."

Mala fide – in bad faith. "The new manager was given KPIs which were near-impossible to achieve, which made him suspect that there was an element of mala fide in the assignment of his duties."

Nemo judex in causa sua – no one should be a judge in his own cause. "The parties that hear this case must not have any personal interest in it, to fulfill the requirement of nemo judex in causa sua" so that the employee can have a fair hearing."

Obiter dictum – a thing said by a judge in passing. "Although a judge's obiter dictum is not binding, it sometimes can constitute an important part of the development of the law."

Ratio decidendi – reason for a judge's decision. "Ratio decidendi is the rule of law on which a judge's decision is based."

Res judicata - A matter that has been finally adjudicated, meaning no further appeals or legal actions by the involved parties is now possible. "The claimant submitted that the issue of whether he was a workman was raised in the application for judicial review in the High Court where the company's application was dismissed, and the company was thus estopped from raising the matter again in the Industrial Court as the doctrine of res judicata applied."

Stare decisis - The obligation of a judge to stand by a prior precedent. "Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case."

Trial de novo - A completely new trial of a matter previously judged. "The failure of a company to conduct an inquiry prior to dismissing an employee can be cured by a trial de novo in the Industrial Court."

(c) Tahirah Manesah Abu Bakar 2019