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[2025] ZALCD 33
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Lemmer v Mudaly (D597/22) [2025] ZALCD 33 (9 September 2025)
FLYNOTES:
LABOUR
– Discrimination –
Age
–
Alleged
retirement – WhatsApp message constituted a clear
termination of employment relationship – Claim of extended
leave was unsupported by evidence or prior communication –
Failure to pay salary and recording of retirement on UIF
forms –
Further supported conclusion that dismissal had occurred –
Automatically unfair dismissal based on age
– No agreed or
proven normal retirement age for position – Six months’
remuneration awarded –
Labour Relations Act 66 of 1995
,
s
187(1)(f).
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
No. D597/22
In
the matter between:
LEONIE
EUNICE
LEMMER Plaintiff
and
Dr.
NIRESHA
MUDLAY Defendant
Heard:
4 & 5 September 2025
Judgment:
9 September 2025
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date of hand-down
is 9 September 2025.
JUDGMENT
MAKHURA, J
[1]
The plaintiff referred an
automatically unfair dismissal dispute under section 187(1)(f) of the
Labour Relations Act
[1]
(LRA).
She claims that she was dismissed on 24 August 2022 via a WhatsApp
message by the defendant because of her age. In the message,
the
defendant recommended that the plaintiff retire and rest, and not
return to work after her annual leave period. The plaintiff’s
annual leave was from 25 to 30 August 2022.
[2]
The defendant disputes the existence of the dismissal. She stated in
her statement of response that she suggested to the
plaintiff that
she should consider retirement. She further stated that she requested
the plaintiff to think about her retirement
during her leave. She
continued:
‘
On the 13
th
September 2022, the Applicant’s attorneys again placed reliance
on the email dated the 24
th
August 2022, alleging that the said email constitutes a dismissal
based on the Applicant’s age.
On the 20 September 2022,
the Respondent’s attorneys communicated to the Applicant’s
attorneys inter
alia
, that the WhatsApp communication from the
Respondent required the Applicant to take time off due to her
temperament and tiredness,
that there was no dismissal suggested, and
that the Applicant was required to report for duty.’
[3]
The enquiry before this Court is, firstly, whether the plaintiff
proved dismissal. If the plaintiff fails to prove dismissal,
that is
the end of the matter, as this Court would have no jurisdiction to
entertain the claim. If she proves dismissal, the second
enquiry is
whether the dismissal fell within the scope of section 187(1)(f) of
the LRA, and if so, the appropriate relief.
[4]
On 18 August 2022, the defendant sent the plaintiff a WhatsApp
message stating that the plaintiff had not been well emotionally
and
physically. The defendant stated further that she felt that
“
retirement is due”
and that they would chat the
following day.
[5]
In response, the plaintiff stated that she intended to schedule an
appointment with the defendant and requested that they
meet before
the defendant's clinic opened the following day.
[6]
It is undisputed that the proposed meeting did not occur. At 18h13 on
24 August 2022, the defendant sent the plaintiff
the following
WhatsApp message:
‘
Leonie, didn’t
get a chance to chat to you … as you know it’s been
hectic.
The practise has grown
and I will be extending the hours to a Saturday as well!
I strongly recommend
that you retire and rest
…
You have worked long
enough and the stressors are impacting on you mentally and
physically.
I trust you will
understand that you should not return after your leave
.
Take care and wish you
well.’ (Own emphasis)
[7]
In response to the defendant’s message, the plaintiff stated
that she was shocked and taken aback by the message.
She continued:
‘
I think it is
unreasonable of you to decide to unilaterally end my career after
hours with a whatsapp message prior to me taking
a couple of days
leave
.
I specifically asked to
meet with you in this regard and refuse to accept your message or to
conduct these discussions via whatsapp.
I therefore request again
to meet when I return from my leave on the 30
th
August
2022. Kindly confirm your availability.’ (Own emphasis)
[8]
On 25 August 2022, the defendant wrote that:
‘
Unfortunately,
I don’t think any way of telling you to retire would have been
ok
…
I am sure I am not the only person to advise you to retire
You know that the demands
of work are huge
You have struggled over
the past 6 months particularly. But I have kept you on (even through
moodiness etc)
I have even advised more
frequent leave to be taken which you declined
I am doing this and
insisting on it just as much for your sake (not just as an employer
and doctor)
Ps Think about it and
process it in your leave.
And chat to loved ones
who I’m sure will agree that it’s the best thing for
you
.’ (Own emphasis)
[9]
On 26 August 2022, the plaintiff then thanked the defendant for the
message and said that they would discuss on Tuesday
(30 August 2022)
at 8h00. The plaintiff replied by saying:
‘
No Leonie …
there is nothing more to say unfortunately.’
[10]
The plaintiff then asked her colleague, Kubashnee Govender
(Govender), to delete all her personal folders from her email
and put
all her personal items at the reception for her collection on 30
August 2022. No further correspondence or communication
between the
parties took place.
[11]
On 13 September 2022, the plaintiff’s attorneys sent a letter
to the defendant. They outlined the facts of the
case between 18 and
26 August 2022, as recorded above, and concluded that the plaintiff
was dismissed due to her age. The plaintiff
was 72 years old. The
plaintiff also stated that her employment contract does not specify
an agreed retirement age and that she
was automatically unfairly
dismissed. The plaintiff proposed terms for the settlement agreement.
[12]
On 21 September 2022, the plaintiff referred an automatically unfair
dispute to the Commission for Conciliation, Mediation
and Arbitration
(CCMA) for conciliation. She stated that she was dismissed on 24
August 2022 and sought maximum compensation.
[13]
The defendant responded with a letter from the attorneys dated 20
September 2022, sent to the plaintiff’s erstwhile
attorneys on
22 September 2022. The defendant disputed the dismissal but argued
that the plaintiff needed time off due to her temperament
and fatigue
at work. The letter recorded that:
‘
We are further
instructed that as per the WhatsApp text which we are in receipt of,
our client was clear about your client needing
to take time off due
to her temperament and tiredness at work…
At no stage whatsoever,
was a dismissal suggested…
We are further instructed
that our client has been expecting your client to report for duty
when she has sufficiently rested.
We therefore are
instructed to advise that your client is to report for duty when she
has sufficiently rested.’
[14]
On 23 September 2022, the plaintiff’s attorneys responded to
the above letter. The letter reiterated the content
of the previous
offer to resolve the dispute.
[15]
Dismissal in this case is
in dispute. Therefore, the plaintiff bears the onus to establish the
existence of the dismissal.
[2]
The upshot of the defendant’s case is that the plaintiff was
never informed that she was dismissed. The defendant proposed
that
the plaintiff takes retirement and for these reasons, she was not
dismissed.
[16]
In
National
Union of Metalworkers of SA & others v Abancedisi Labour
Services
,
the Supreme Court of Appeal held that:
[3]
‘
A
refusal to allow an employee to do the work he was engaged to do may
constitute a wrongful repudiation and a fundamental breach
of the
employment contract which vests the employee with an election to
stand by the contract or to terminate it
.
Here, Abancedisi did not just leave the employees to languish in
idleness after their exclusion from Kitsanker. It also did not
pay
them any wages. Thereafter, nothing even slightly resembling the
characteristics of an employment relationship remained between
the
parties beyond the illusory retention of the employees on
Abancedisi's payroll upon which Mr Van der Mescht harped. Whether
or
not Abancedisi intended to repudiate the employment contract, the
effect of its conduct constituted a material breach of the
employment
contract that entitled the employees to cancel it. To that end, the
employees
took
a step that is sanctioned by the law and referred a dispute to the
bargaining council.
The LAC made a related
finding that this action; ie the employees’ referral was made
“too soon” and was “premature”.
With respect,
I do not agree. Section 191(1)
(b)
of LRA expressly requires
this to be done in writing within 30 days of the date of the
dismissal. Evidently, the employees did
not blindly rush to the
bargaining council. They were dismissed between 6 and 9 July and
approached the bargaining council on 23
July 2001, two weeks already
into the four-week period envisaged by the legislature. This was
after their union representative,
Mr Tshoga, had communicated with Mr
Van der Mescht and ascertained Abancedisi's position. The LAC's view
that their situation was
akin to an “indefinite suspension”,
with which I disagree as it is not supported by the evidence, and the
courses the
LAC considered should have been followed by the employees
are, with respect, irrelevant.
In deciding whether there
was an unfair dismissal justifying the order sought by the employees,
reference must first be had to s
186(1)
(a)
of the Act in terms
of which the term dismissal means that “an employer has
terminated a contract of employment with or without
notice’: ie
the employer has engaged in an act which brings the contract of
employment to an end in a manner recognized as
valid by the law…’
[17]
The plaintiff testified that she understood the defendant’s
message that “
I trust you will understand that you should
not return after your leave”
to mean that she was
dismissed. She testified that she was dismissed because the defendant
told her not to return to work after
her leave and that she must
retire. It was put to her that the defendant expressed her feeling
and a strong recommendation that
she was due for retirement, and that
she did not instruct her to retire. The plaintiff insisted that she
understood the defendant’s
statement to mean that she must
retire because she was told not to return after her leave.
[18]
The defendant disputed that she dismissed the plaintiff. She
testified that the plaintiff was on leave from 25 August
2022 to 30
August 2022 and that she wanted the plaintiff to take more time after
her leave to discuss her recommendation to retire
with her family, to
think about the issue, and process it. Asked if she had reached out
to the plaintiff after the expiry of her
annual leave, the defendant
said that she expected the plaintiff to return when she felt rested,
until she was served with the
attorney’s letter. These
sentiments are recorded in the defendant’s erstwhile attorneys’
letter dated 20 September
2022. In that letter to the plaintiff’s
attorneys, the defendant stated that the plaintiff needed more time
off because of
her temperament and tiredness, that she was not
dismissed and that the defendant expects the plaintiff to return to
work when she
has sufficiently rested.
[19]
The plaintiff was informed in unambiguous terms not to return to work
after her annual leave period ended. The reason
for this was that the
defendant “
strongly”
recommended that she must
“
retire and rest”
because she had worked long
enough, and the stressors were impacting her mentally and physically.
There is nothing in the messages
exchanged between the plaintiff and
the defendant that suggests that the defendant expected the plaintiff
to return to work when
she felt rested.
[20]
The plaintiff understood the defendant’s message to mean that
her employment contract was terminated. She expressed
shock and
informed the defendant that it was unreasonable for her to
unilaterally terminate her employment contract in the manner
that she
did. The plaintiff requested to meet with the defendant when she
returned from leave. The defendant did not dispute that
she ended the
plaintiff’s employment contract, or her “
career”
.
She did not correct the plaintiff and inform her to return to work
when she had rested. She did not inform the plaintiff that
she would
be paid her salary during the period of thinking, processing, and/or
discussing the retirement with her family. Instead,
she told the
plaintiff that she did not think that “
any way of telling
[her] to retire would have been ok”
, that she was doing and
insisting on doing this for the plaintiff’s sake, and that she
believed that her loved ones would
agree that it was the best thing
for the plaintiff. When the plaintiff sought to discuss the issue
after she returned from her
leave on 30 August 2022, the defendant
told her that there was “
nothing more to say”
. The
defendant testified that even if the plaintiff reported for duty, she
would have disciplined her for alleged misconduct.
[21]
In
Ekhamanzi
Springs (Pty) Ltd v Mnomiya
[4]
,
the Labour Appeal Court held that:
‘
Acceptance
of an employee into an employer’s service has long been
recognized by many authors as one of the common-law duties
of an
employer, non-fulfilment of which would amount to a breach of the
employment contract.
In
Kinemas
Ltd v Berman
the court confirmed the court a
quo’s
finding that the employer’s refusal to accept an employee's
tender for services constituted a repudiation of the employment
contract entitling the employee to damages for breach of contract
.
The same approach seems to have been endorsed by this Court in the
unreported case of
National
Electronic Media Institute of SA v Buthelezi
,
where the Court dismissed an appeal against an order of the Labour
Court declaring an employer's refusal to allow an employee
to tender
his service (and to perform his duties in terms of the employment
contract) as a repudiation of the employment contract.
As was the
case in the afore-stated cases, in this matter the respondent
tendered to work. The tender was made impossible to carry
out by the
conduct of the Mission, which the appellant associated itself with by
virtue of its acquiescence in the Mission's denial
of access.’
[22]
The defendant’s unequivocal communication
to the plaintiff not to return to work after her leave and her
rejection of the
plaintiff’s tender to return to work amount to
a repudiation of the employment contract, entitling the plaintiff to
cancel
it and claim damages. In this regard, the plaintiff referred
an unfair dismissal dispute and claimed compensation in terms of the
LRA.
[23]
The defendant’s evidence that when she asked the plaintiff not
to return to work, she was placing her on an extended
leave, is an
afterthought and improbable, based on her responses on 25 and 26
August 2022. This version was also not put to the
plaintiff during
cross-examination.
[24]
The defendant claimed in her legal representative’s letter
dated 20 September 2022, sent to the plaintiff’s
attorneys on
22 September 2022, that she did not dismiss the plaintiff and that
she expected her to return to work when she had
sufficiently rested.
This was again an afterthought and a disingenuous strategy to cover
up the dismissal. The offer to the plaintiff
to return to work was
communicated for the first time in this letter, four weeks after the
dismissal, 9 days after the defendant
received the letter from the
plaintiff’s attorneys, and one day after the referral of the
dispute for conciliation. Instead
of retracting or withdrawing the
decision to terminate the employment contract, the defendant denied
that she had dismissed the
plaintiff. Despite stating that the
plaintiff was not dismissed, the defendant did not pay the
plaintiff’s salary for September
2022, which was due and
payable on 15 September 2022. The defendant recorded on the
Unemployment Insurance Form that the plaintiff
retired on 31 August
2022.
[25]
Having considered the evidence, I am satisfied that the plaintiff had
discharged her onus in terms of section 192(1)
of the LRA. The next
question is whether the dismissal was automatically unfair. Again,
the plaintiff bears the onus. She has presented
evidence that she was
dismissed because of her age. That she was dismissed because of her
age is not in dispute.
[26]
It is common cause between the parties that there was no agreed
retirement age. The defendant invoked section 187(2)(b)
of the LRA,
and claimed that the plaintiff had reached a normal retirement age.
This section provides that:
‘
(2)
Despite subsection (1) (f)
(a)
–
…
(b)
a
dismissal
based on age is fair if the
employee
has
reached the normal or agreed retirement age for persons employed in
that capacity.’
[27]
The defendant contends that because the plaintiff had reached the
normal retirement age, she was entitled to terminate
her services.
The defendant then alleged that the plaintiff had accepted that she
had passed the normal retirement age and abandoned
her employment.
[28]
The onus is on the
defendant to prove that the plaintiff reached the normal retirement
age for persons employed in the position
of Practice Manager.
[5]
Ms Ntuli, counsel for the defendant, conceded that no evidence was
presented in this regard. Accordingly, the defendant’s
invocation of the exception was a dismal failure and a non-starter.
Her defence fails, and the dismissal is found to be automatically
unfair.
[29]
The plaintiff seeks maximum compensation. In terms of section 194(3)
of the LRA, this Court may order compensation, which
must be just and
equitable and not exceed the equivalent of the employee’s 24
months’ remuneration, calculated at the
employee’s rate
of remuneration on the date of dismissal.
[30]
Whilst the letter dated 20 September 2022 did not prove that the
plaintiff was not dismissed, it nevertheless stated
that the
defendant expected the plaintiff to report for duty when she had
sufficiently rested. Had the plaintiff taken this offer,
this matter
would not have taken this turn. The offer was made four weeks after
the termination of the employment contract. The
plaintiff’s
refusal to report for duty, whilst I understand that she may have
been disappointed and shocked by the dismissal
and the manner in
which it was communicated to her, was unreasonable.
[31]
Considering all the factors, I am of the view that compensation
equivalent to 6 months, calculated at R20 000.00 per
month, which was
the plaintiff’s monthly wages on the date of dismissal, is just
and equitable in the circumstances.
[32]
Both parties seek costs.
This Court has the discretion to determine the issue of costs in
terms of section 162 of the LRA. In deciding
whether to award costs,
I am guided by the principles of law and fairness. The principle that
costs follow the result does not
apply in this Court.
[6]
Having considered the matter and the arguments from both parties, I
am not persuaded that there is sufficient evidence and persuasive
arguments that justify deviating from the principle that costs do not
follow the result. Accordingly, I find that no costs order
should be
made.
[33]
In the premises, the following order is made:
Order
1
The plaintiff had discharged her onus in terms of
section 192(1) of the LRA, and established the existence of
dismissal.
2
It is declared that the dismissal of the plaintiff
by the defendant is automatically unfair.
3
The defendant is ordered to pay the plaintiff R120
000.00, which is the equivalent of 6 months’ remuneration.
4 There is no
order as to costs.
M. Makhura
Judge of the Labour Court
of South Africa
Appearances:
For
the Plaintiff:
Mr C Higgs of
Higgs Attorneys
For
the Defendant:
Ms N Ntuli
Instructed
by:
Aggie Govender Attorneys
[1]
Act 66 of 1995, as amended. Section 187(1)(f) provides that a
dismissal is automatically unfair if the reason for the dismissal
is
that the employer unfairly discriminated against the employee,
directly or indirectly, on any arbitrary ground, including
age.
[2]
Section 192(1) of the LRA.
[3]
(2013)
34 ILJ 3075 (SCA);
[2013] 12 BLLR 1185
(SCA) at paras 15 - 17.
[4]
[2014] ZALAC 38
; (2014) 35 ILJ 2388 (LAC) at para 30.
[5]
See:
Slabbert
v Muji Motor Group (Pty) Ltd
[2024]
ZALCD 30; (2024) 45 ILJ 2817 (LC).
[6]
Zungu v
Premier of the Province of KwaZulu-Natal & others
(2018) 39 ILJ 523 (CC);
[2018] 4 BLLR 323
(CC);
Union
for Police Security & Corrections Organisation v SA Custodial
Management (Pty) Ltd & others
(2021)
42 ILJ 2371 (CC);
[2021] 12 BLLR 1173
(CC).