A KwaZulu-Natal doctor has been ordered to compensate her 72-year-old former employee R120,000 for an age-related dismissal conducted via a WhatsApp message. 

Leonie Eunice Lemmer was employed as a Practice Manager at a medical clinic operated by Dr Niresha Mudaly.

In mid-August 2022, while Lemmer was on annual leave, she received a WhatsApp message from Mudaly recommending that she should retire and rest, stating that she should not return to work after her leave.

“Leonie, didn’t get a chance to chat to you … as you know it’s been hectic. The practice 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 you mentally and physically. I trust you will understand that you should not return after your leave. Take care and wish you well,” read the message.

Shocked by the message, Lemmer requested a meeting with Mudaly to discuss the matter in person, however, Mudaly told her that her decision was final.

“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 six 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).

“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,” Mudaly wrote in her message.

Lemmer thanked Mudaly for the message and said that they would discuss it further upon her return.

‘No Leonie … there is nothing more to say unfortunately,” said Mudaly.

The following month, in September, Lemmer referred an unfair dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) where she argued that she was dismissed due to her age and sought maximum compensation.

However, Mudaly denied that a dismissal had occurred, claiming she had merely suggested retirement and expected Lemmer to return after resting.

Lemmer said Mudaly’s was unequivocal and her communication was clear and final; there was no indication that she was expected to resume duties.

The matter was then referred to the Labour Court where the court focused on whether an unfair dismissal had indeed occurred.

Judge Molatelo Makhura noted that despite Mudaly stating that Lemmer was not dismissed, she did not pay her salary for September 2022, which was payable on September 15, 2022. She also recorded on the Unemployment Insurance Form (UIF) that Lemmer retired on August 31, 2022.

Judge Makhura found Mudaly’s argument that a letter was sent to Lemmer, expecting her return to work, to be a deceptive attempt to conceal the dismissal. The letter was only sent four weeks after the dismissal, nine days after she received the letter from Lemmer’s attorneys, and one day after the referral of the dispute to the CCMA.

“Having considered the evidence, I am satisfied that the plaintiff (Lemmer) had discharged her onus in terms of section 192(1) of the Labour Relations Act (LRA),” said the judge. 

Judge Makhuwa said Lemmer was entitled to R120,000 compensation which is equivalent to her six months’ salary.

“It’s just and equitable in the circumstances.”

sinenhlanhla.masilela@iol.co.za

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