Sexual harassment and constructive dismissal

Dial Tech CC v Hudson & another
25-JUL-07
Case No. JS 972 / 04
Judgment Date: 29 March 2007
Jurisdiction: Labour Court, Johannesburg
Judge: Molahlehi AJ
Subject: Condonation

Issue:

An employer sought to have a default judgment set aside, but first needed the Court’s permission for late filing of the application.

Summary of Facts:

The respondent employee alleged that she was the victim of sexual harassment in the form of pornography which the employee argued the employer had failed to prevent her from being exposed to. The employee’s computer was linked to her MD’s computer, such that pornographic images that were loaded onto the MD’s computer also appeared on the employee’s computer. After receiving a complaint from the employee, the MD removed the pornographic pop-up and replaced it with a pornographic screensaver.

The employee lodged a claim in the CCMA for constructive dismissal and a discrimination claim in the Court. The employer failed to appear in both cases and an arbitration award was made in the CCMA and default judgment was obtained in the Court. Both judgments were for the amount of R58,000.

The employer now sought the recession of the default judgment and condonation of late filing of the application. The rules say an application for recession must be lodged within 15 days of the party becoming aware of the judgment; the employer was at least 40 days late.

Summary of Judgement:

The Court held that the factors to be taken into account in assessing whether to grant condonation are:

(a) the degree of lateness or non compliance with the prescribed time frame;
(b) the explanation for the lateness or the failure to comply with time frames;
(c) bona fide defence or prospects of success in the main case;
(d) the importance of the case;
(e) the respondent’s interest in the finality of the judgment;
(f) the convenience of the court; and
(g) avoidance of unnecessary delay in the administration of justice.

In applying the above factors, the Court found ‘that it is clear that the rescission application was excessively late, the explanation for the lateness is unsatisfactory and insufficient and prospects of success are weak if not non-existent’. In the circumstances, the Court dismissed the application condonation and accordingly the application for recession also failed. Costs were awarded against the employer.