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Judiciary dismisses retrospective claim that termination text was merely extended sick leave

WORKWISE | WhatsApp retirement message costs employer R120,000

Durban doctor held liable for age discrimination after telling practice manager not to return

2 min read

The Labour Court in Durban has confirmed that dismissing an employee via a messaging app on the basis of age constitutes an automatically unfair dismissal, particularly when no agreed retirement age exists. In Lemmer v Dr Niresha Mudlay, an employer instructed a 72-year-old practice manager via WhatsApp not to return from leave, claiming work-related stress warranted her retirement.

Rejecting the employer's subsequent claims that the communication was merely an offer of extended leave, the court held that the unilateral action repudiated the employment contract. The ruling serves as a vital reminder to employers about statutory retirement rules and the legal weight of informal digital correspondence.

SummaryOpen the quick read
  • A Durban doctor sent a WhatsApp message advising her 72-year-old practice manager to retire and not return after leave due to work-related stress.
  • The employee challenged the communication as a unilateral dismissal and referred an automatically unfair dismissal dispute to the CCMA and Labour Court.
  • The Labour Court ruled that the messages amounted to contract repudiation and rejected the employer's claim that the text was merely a proposal for extended leave.
  • Because the employer had not established an agreed or normal retirement age, the statutory defence for age-related termination failed entirely.
  • The court awarded the employee R120 000, representing six months' remuneration, adjusting the amount due to her refusal of a later offer to return.

A WhatsApp message advising a long-serving employee not to return to work after her leave amounted to an automatically unfair dismissal based on age.

In Lemmer v Dr Niresha Mudlay (D597/22) (Labour Court, Durban, 9 September 2025), the employee, who was 72 years old, worked as the Practice Manager for Dr Niresha Mudlay.

On 24 August 2022, shortly before the employee commenced annual leave, Dr Mudlay sent her a WhatsApp message stating that she "strongly recommend[ed]" that Lemmer retire and rest because work-related stress was affecting her mentally and physically.

The message concluded: "I trust you will understand that you should not return after your leave."

The employee immediately responded that she was shocked by the message and regarded it as the unilateral termination of her employment. She requested a meeting on her return from leave, but Dr Mudlay replied that there was "nothing more to say".

Believing she had been dismissed because of her age, the employee referred an automatically unfair dismissal dispute to the CCMA.

After conciliation failed, the matter proceeded to the Labour Court.

Dr Mudlay denied dismissing the employee, contending that she had merely recommended retirement and intended that the employee take additional time off to rest before returning to work.

She relied on a letter sent several weeks later by her attorneys stating that the employee was expected to return to work once she had sufficiently recovered.

The Court rejected that version. It found that the WhatsApp messages clearly conveyed that the employee was not to return to work after her leave.

When the employee challenged the decision and sought a meeting, the employer neither withdrew the instruction nor invited her back to work. Instead, she reiterated that retirement was in the employee's best interests and later refused further discussion.

The Court held that the employer's conduct amounted to a repudiation of the employment contract and constituted a dismissal.

The later attempt to characterise the communication as extended leave was found to be an afterthought designed to avoid the consequences of the dismissal.

Having established that the employee was dismissed because of her age, the Court considered whether the dismissal fell within the statutory exception permitting retirement at the agreed or normal retirement age.

As there was no agreed retirement age and the employer presented no evidence establishing a normal retirement age for the position, that defence failed.

Although the Court found the dismissal to be automatically unfair, it also noted that the employee had unreasonably declined the employer's later invitation to return to work.

Taking all the circumstances into account, the Court awarded compensation equal to six months' remuneration, amounting to R120 000, and made no order as to costs.

In this weekly column, labour lawyer Jonathan Goldberg, chair of Global Business Solutions, looks at various aspects of labour law