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Rasmussen v Robert Louis Stevenson School Board of Trustees [2019] WSSC 22 (29 May 2019)

SUPREME COURT OF SAMOA
Rasmussen v Robert Loius Stevenson School Board of Trustees [2019] WSSC 22

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

AFAMASAGA AGNES RASMUSSEN of Lepea, Educator.
Plaintiff

A N D

ROBERT LOUIS STEVENSON SCHOOL BOARD OF TRUSTEES a Charitable Trust Incorporated pursuant to the Charitable Trusts Act 1965.
Defendant

Counsel:
R Drake for plaintiff
P A Fepuleai for defendant

Judgment 29 May 2019

JUDGMENT OF SAPOLU J
TEMPORARY JUSTICE OF THE SUPREME COURT
AND FORMER CHIEF JUSTICE

Introduction

1. I sincerely regret that it has taken this long to deliver my judgment in this case. I convey my apologies to the parties and thank them for their patience.
2. These proceedings are concerned with an action by the plaintiff against the defendant for wrongful dismissal from her employment as assistant principal secondary at the Robert Louis Stevenson School. What counsel for the plaintiff said in her written submissions and when I asked her when the plaintiff was being cross-examined by counsel for the defendant was that the plaintiff’s action was for wrongful termination of her employment. The terms ‘wrongful termination’ and ‘wrongful dismissal’ mean the same thing in employment law. The defendant which is the board of trustees of the Robert Louis Stevenson School strongly opposed the plaintiff’s claim that it had terminated her employment. Thus, the fundamental issue in this case is whether or not the defendant terminated the plaintiff’s employment. Whether I should proceed to consider and determine the other issues raised in this case depends on the answer to that fundamental issue. The plaintiff insisted that the defendant did terminate her employment whilst the defendant was quite adamant that it did not. Both counsel at the conclusion of the hearing and in their written submissions recognised that the central question is therefore whose evidence should the Court prefer. I would have to decide this question first as it is a threshold issue for the purposes of this case. There is another closely related question I would have to decide at this stage and that is whether I am satisfied on the evidence that the plaintiff had established on the balance of probabilities that her employment was terminated by the defendant.

The evidence

(a) Non contentious areas of the evidence

3. The plaintiff is an educator and schoolteacher by profession. She is an experienced educator and administrator. From 1975 to 1998 she taught in a number of schools in New Zealand and was appointed to a number of national advisory committees. In 1998 she returned to Samoa and in 1999 was appointed as principal of one of the local colleges. In 2002 she was appointed as principal of the Aoga Fiamalamalama a special needs school for intellectually handicapped children. In June 2004 she was employed as a teacher in Year 6 of the Robert Louis Stevenson Primary School and in December the same year she was appointed as assistant principal secondary at Robert Louis Stevenson Secondary School. So the plaintiff has had quite a long career as an educator and schoolteacher. She appears not to have stayed for too long in any one school before she moved on to a different school.
4. The documentary evidence refers to the plaintiff as “assistant principal secondary” or as “deputy principal secondary” of the Robert Louis Stevenson School. For present purposes, I will refer to her as “assistant principal secondary” as that is her designation used by Dr Brian Bennison, the then principal of the school, in his affidavit.
5. The evidence showed that the plaintiff was appointed assistant principal secondary in December 2004 for a term of three years to December 2007. The appointment was renewable subject to satisfactory performance. The remuneration package was $40,000 pa salary and $4,000 annual performance bonus maximum. The plaintiffs first year of service effectively started in 2015 when the school reopened after the Christmas and New Year’s holiday.
6. The following is the sequence of events that occurred from 2005 to 2007:
   • (a) By letter dated 23 August 2005, the mother of one of the students wrote to the principal of the school and she was critical of the school’s culture programme. In one sentence in her letter she was also critical of the plaintiff. The complainant in this instance was the plaintiff’s sister. But it appears from the evidence of the principal and particularly the evidence of the defendant’s chairman that the defendant did not give any weight to the criticism against the plaintiff from her sister for the purpose of the plaintiff’s 2005 performance appraisal as it was a personal matter between the two of them. At the end of 2005, the defendant approved payment of the plaintiff’s full bonus of $4,000 after the defendant had received the principal’s performance appraisal of the plaintiff for that year.
   • (b) By letter dated 13 December 2005, the principal of the school wrote to the plaintiff enclosing his performance appraisal of the plaintiff for 2005. After commending the plaintiff for the way she had tightened up the day to day operation of the school and for contributing to the improvement of the morale of the secondary teaching staff, the principal said:
   • “My one area of concern has been in regard to relationship with some parents. As already discussed with you, some parents have found you abrasive in their dealings with you. My advice is to listen to parents and accept their criticisms without becoming defensive. As parents we all like to be listened to when we approach the school with concerns about our children.
   • I thank you for the personal support you have given me this year. Having worked with you in the past, it has made my first year so much easier... I look forward to working with you to make RLSS an even more effective learning organization.”
   • (c) By letter dated 8 December 2006, the parents of another student at the school complained to the principal alleging continued unprofessional behaviour and attitudes of some of the staff members at the school. Specific reference was made to the plaintiff and some of the teachers.
   • (d) On 12 December 2006, the principal met in the morning with the plaintiff at his office at Lotopa and he showed the plaintiff the letter of complaint dated 8 December 2006. The plaintiff asked the principal to bring the letter to the school at Tafaigata because it affected a number of staff members. The principal said he did not want to discuss it openly with the whole staff as the letter makes specific mention of some of the staff members. He preferred to discuss matters with those staff members individually.
   • (e) On Wednesday evening 13 December 2006, the defendant was supposed to have its normal monthly meeting but the meeting did not eventuate for lack of a quorum. So the defendant could not have discussed the plaintiff’s performance appraisal for 2006 at the meeting of 13 December as that meeting did not eventuate.
   • (f) On Friday morning 15 December 2006 which was the last day of the 2006 school year for staff members, the principal met with the plaintiff who was scheduled to leave for New Zealand on Monday 18 December. The principal gave the plaintiff a copy of her performance appraisal for 2006 under cover of a letter of the same date. He also gave the plaintiff copies of the letters of complaint dated 23 August 2005 and 8 December 2006. The principal said that he verbally informed the plaintiff that he had not approved payment of her performance bonus for 2006. In his covering letter of 15 December 2006, the principal said:
   • “I appreciate the way you have continued to tighten up the discipline this year among both the staff and students.
   • The major continued area of concern has been the relationships with some parents. In my appraisal last year I discussed with you how some parents found you abrasive in their dealings with you. My advice at the time was to listen to parents and accept their criticisms without becoming defensive. But this year, I have had to again field complaints from parents about the way they had been treated by you. Irrespective of whether the parents are right or wrong, I am still concerned that these people develop a negative attitude towards our school because of their experiences when they approach us with concerns.
   • As a private school, I believe that we are continually in the ‘marketing business’ showing our school in the most positive light. And it is in these moments when parents deal directly with us that they form the strongest impression of us. During the year I have kept you fully informed about parental concerns and showed the letter I have received. But you will appreciate that many parents are unwilling to commit their comments to paper.
   • Because of these concerns, the Trust Management Board has not approved your bonus payment for 2006. I further understand that they wish to take up some of the issues raised in my report with you. I thank you for your loyalty and efforts during 2006.”

It would appear that it is incorrect that the Trust Management Board had decided not to approve payment of the plaintiff’s performances bonus for 2006 when the principal met with the plaintiff on 13 December. Any chance of the matter being discussed at the defendant’s meeting on 13 December 2006 was not possible as that meeting had to be cancelled for lack of a quorum. The last day of the 2006 school year for staff members was Friday 15 December and the principal was to leave for New Zealand on 18 December. However, according to the evidence of Mr John Ryan Jr, the then chairman of the defendant, it was his understanding that the payment of the annual performance bonus for the plaintiff was a matter at the discretion of the principal to consider based on performance appraisals. The principal had delegated authority from the defendant to decide whether to pay the plaintiff’s bonus. But the plaintiff could appeal to the defendant against a decision of the principal not to pay her bonus. The principal in his affidavit said that after carrying out the plaintiff’s performance appraisal for 2006 he decided on behalf of the defendant not to pay the plaintiff’s bonus. So it was actually the principal, with delegated authority from the defendant, who decided to withhold payment of the plaintiff’s bonus.

(g) According to the evidence of the chairman, before the principal left for New Zealand for the Christmas holiday on Monday 18 December 2006, the principal called and informed him of the principal’s decision not to pay the plaintiff’s bonus for 2006. The principal also told him that the plaintiff had wanted to see the defendant that same day, 15 December, but he informed her that was not practical. This must have been because it was already Friday afternoon and it was not possible to convene a meeting of the defendant at short notice. The principal also gave him a brief rundown of his discussion with the plaintiff on 15 December. After talking with the principal on 18 December, the chairman called the plaintiff to meet with him at Tafaigata the next day 19 December at 11 am. That meeting was postponed on 19 December by the chairman to 20 December. There were conflicting accounts given by the chairman and the plaintiff of what transpired at that meeting. In addition, whilst the evidence of the chairman and the plaintiff were consistent that the plaintiff was to appear before the defendant’s meeting at a later date, they differed as to when that was to be. The chairman said that they parted amicably and it was agreed that the plaintiff was to appear before the defendant’s meeting scheduled for 24 January 2007. This was the defendant’s monthly meeting for January 2007. On the other hand, the plaintiff said that the chairman told her that the defendant’s meeting would be held when the principal returned from New Zealand. The plaintiff, however, confirmed that she parted amicably with the chairman.
(h) On 8 January 2007 when school business resumed, the plaintiff, after seeking legal advice, went to the school and packed up her personal effects and left the school.
(i) On Thursday 25 January 2007, the defendant had its monthly meeting but the plaintiff did not turn up. According to the plaintiff, the chairman rang her on 25 January and informed her of the defendant’s meeting to be held in the evening but she did not go to the meeting as she thought the defendant had already made up its mind to terminate her.
(j) On 5 February 2007, the plaintiff filed proceedings against the defendant for wrongful termination seeking damages.
(k) On 7 February 2007, the principal wrote a letter to the plaintiff enquiring why she had not returned to assume her duties as assistant principal. The principal also advised the plaintiff that she had been paid up until 6 February 2006 and that no notice of dismissal had ever been issued by the defendant nor had a letter of resignation been received from her.
(l) There was no detailed written contract of employment between the plaintiff and the defendant except for what is contained as an offer in the letter dated 22 December 2004 from the then chairman of the defendant to the plaintiff setting out the remuneration package and the term of the plaintiff’s employment which was for three years ending in December 2007. This was accepted by the plaintiff by taking up employment on those terms. In my view, that was the contract of employment between the plaintiff and the defendant.
(m) On 7 June 2007, the defendant filed a statement of defence. The case was subsequently set down for mediation on 10 April 2008 but mediation was unsuccessful.

(b) Contentious areas of the evidence

7. The first real contentious area of the evidence relates to what transpired at the meeting between the principal and the plaintiff on Wednesday morning 13 December 2006 at around 11 am at Tafaigata. The principal said he presented to the plaintiff at that meeting her performance appraisal report for 2006 but did not give her the report to take away with her. He also said that he discussed with the plaintiff that the defendant (the Board of Trustees) was not paying her bonus for 2006.
8. Under cross-examination by counsel for the plaintiff, the principal said that when he entered the plaintiff’s office at Tafaigata, he said to the plaintiff that he has not had a good morning. He also said that he informed the plaintiff that the defendant had decided not to pay her bonus. The principal was, however, adamant that he did not say to the plaintiff that the defendant had decided not to pay her bonus because of the letters of complaint of 23 August 2005 and 8 December 2006 from the parents of some of the students at the school. The principal also repeatedly denied that he said to the plaintiff that either the defendant would give her the bonus or the defendant would fire her. He said he could not have said that because there was no agenda to terminate the plaintiff. For the same reason, he could not have gone with the plaintiff on that day to see the defendant before any decision to terminate was formalised by the defendant as there had been no such decision.
9. Looking at the evidence of the principal with the benefit of hindsight, he was right that as of 13 December 2006, the defendant had never made any decision to terminate the plaintiff’s employment or not to pay her bonus. The defendant had also never made any decision that the plaintiff would either get the full bonus or else she would be fired. There was no evidence that the question of termination of the plaintiff’s employment had ever been discussed by the defendant prior to 13 December. The monthly meeting of the defendant scheduled for 13 December did not eventuate for lack of a quorum. So the defendant could not have discussed the payment of the plaintiff’s 2006 bonus or any issue relating to her termination at such a meeting as the meeting did not go ahead. It would therefore appear that either the principal was telling the truth about what transpired at his meeting with the plaintiff on 13 December or else he was bluffing the plaintiff into accepting non-payment of her bonus.
10. In her evidence, the plaintiff said that when she met with the principal at Tafaigata in the morning of 13 December 2006 at around 11 am, she asked the principal whether he had brought with him the cheques for the tea fund, her bonus, etc. The principal replied he had not had a good morning and could they meet inside the office. When they met inside the office, the principal informed her that the defendant had decided not to pay out her 2006 bonus citing the two aforementioned letters of complaint from some of the students’ parents. The plaintiff said that she then asked the principal whether she was not good enough for half the bonus and his reply was that it was either the bonus or the defendant would fire her. The plaintiff also said that before she left work that day, she suggested to the principal that perhaps she could forgo the bonus but to allow her to complete the third year of her three-year contract. His reply was that she had no contract and he did not think the defendant would renew her contract. This appears to be contradictory. For the principal to say that the plaintiff had no contract and then for him to say at the same time that he did not think that the defendant would renew her contract implies that there was a contract but it was not likely to be renewed. I am not satisfied that the principal made such a statement.
11. The main issue of contention relating to the meeting on 13 December is whether I should believe the plaintiff’s evidence that the principal said to her that either the bonus was paid to her or she would be fired by the defendant or the principal’s denial. It is not uncommon for people to have differences in their recollections of past events particularly in relation to matters of detail. In this regard, a witness can be quite honest but mistaken as to his or her evidence. Having carefully considered the evidence, I have decided to prefer the evidence of the principal that he never said to the plaintiff that either the bonus or she could be fired by the defendant. Anyhow, what transpired at that meeting was insufficient to give rise to an indication or impression from the principal that the defendant had decided to terminate the plaintiff’s employment. It is clear that the purpose of the meeting was for the principal to inform the plaintiff that her bonus would not be paid. The meeting was not about terminating the plaintiff’s employment.
12. The second contentious area of the evidence which is relevant relates to the meetings between the principal and the plaintiff in the morning and in the afternoon of Friday 15 December 2006 which was the last day of the 2006 school year for staff members. In her affidavit, the plaintiff said that when she met with the principal at Tafaigata, the principal had brought with him her performance appraisal, a letter informing her of the reason why the defendant would not approve payment of her bonus, a copy of the aforementioned letter dated 23 August 2005, and a copy of the aforementioned letter of 8 December 2006. The plaintiff was then given her performance appraisal and the covering letter dated 15 December which she read. She then questioned the principal about his use of the word “Undeveloped” in most spaces of the appraisal. She suggested changes and after brief consultations, the principal left to make the necessary amendments to the appraisal. In the afternoon of the same day, the plaintiff again met with the principal and the spaces where the word “Undeveloped” had appeared had been changed to “Areas of concern” or “Areas for development”.
13. The plaintiff further said in her affidavit that before she left her office on Friday 15 December, she again asked the principal in relation to her employment whether it was good or bad news. She said the principal indicated to her that the defendant had met and had made their decision to terminate her employment but that she would be informed by a member of the defendant the following week. When she asked the principal whether they could meet with the defendant before the principal left for New Zealand on Monday 18 December, the principal replied that was not possible as the defendant needed time to meet to ensure that everything regarding the decision was properly done.
14. During cross-examination of the plaintiff by counsel for the defendant, I intervened and referred to the evidence already given by the principal and asked the plaintiff whether the principal had actually said to her that the defendant had terminated her employment. The principal had given evidence first by consent of counsel before the plaintiff gave evidence as the principal had to return to New Zealand. The plaintiff’s reply was that she could not remember what was said by the principal in his affidavit but it was a ‘body language indication’ by the principal to her when they said goodbye and thanked one another and the principal again refused her request for them to go and meet with the defendant before the principal left for New Zealand on 18 December. So it appears from this part of the plaintiff’s evidence that she was inferring from the principal’s body language that the defendant had terminated her employment but the principal did not actually say those words.
15. The principal in his affidavit said that when he met with the plaintiff on 15 December he gave her a copy of her performance appraisal for 2006 and his covering letter dated 15 December 2006 and the plaintiff read those documents. He also informed the plaintiff that he did not approve payment of her bonus. The plaintiff was also informed in the covering letter to the appraisal that the defendant wanted to take up with her some of the issues raised in the appraisal. The principal completely denied that he had indicated to the plaintiff that the defendant had terminated her employment or gave any impression to that effect.
16. In the principal’s evidence, he also repeatedly denied that he indicated to the plaintiff that the defendant had met and decided to terminate her employment because the defendant had not met on 13 December. He also said that he had never recommended to the defendant to terminate the plaintiff’s employment or set in motion any termination procedures. But he told the plaintiff that he felt that her contract would not be renewed by the defendant.
17. Under cross-examination, the principal maintained throughout that the plaintiff was not terminated. What he had said was that the plaintiff’s contract of employment would not be renewed but he never used the word ‘termination’ as there had been no termination of the plaintiff’s contract.
18. It is also difficult to accept that the principal gave any indication to the plaintiff at their meeting on 15 December that her employment was terminated because the covering letter dated 15 December 2006 given by the principal to the plaintiff and which the plaintiff read only stated that the defendant had not approved payment of the plaintiff’s bonus for 2006 for the reasons given in the letter. The primary reason was the continued relationships between the plaintiff and the parents of some of the students. The principal in the same letter also thanked the plaintiff for her loyalty and efforts during 2006. There was no mention or any indication of termination in the letter.
19. I therefore accept the principal’s evidence that he had never given any indication or impression to the plaintiff at their meeting on 15 December that her contract of employment had been terminated.
20. The third and last relevant contentious area of the evidence relates to the meeting between the plaintiff and the chairman on 20 December 2006 at Tafaigata. In her affidavit, the plaintiff said that when the chairman arrived for their meeting on 20 December he sat across from her and said “Agnes, Afamasaga, I’m sorry I’m a bearer of bad news. The Board has decided”. The plaintiff said the chairman then paused without finishing his sentence. She then said “to terminate?” and the chairman said “yes”. The chairman then said that his personal suggestion to her was for her to resign and she would receive all her entitlements. Her reply was that she would not resign; the Board’s decision was so sudden and without consultation. She then asked the chairman whether that was a recommendation from the principal and he nodded to indicate a “yes”. When she asked for the reason behind that sudden decision the chairman replied it was the letters of complaint from the parents and the plaintiff gave her explanation in relation to those letters. The chairman then said that nine members of the Board against four decided on the termination. She also said to the chairman that the Board could at least have invited her to discuss the matter. The chairman then suggested that he could call a full Board meeting when the principal returned from overseas so that she could meet with them. The plaintiff believed this suggestion came about because she had told the chairman that she had sought legal advice. She also pointed out that such a meeting should have happened before the Board arrived at its decision to terminate her. She added that there was no point in meeting after the decision had been made. The plaintiff also said that her witness Ruta Fua was present and heard what had happened.
21. The witness Ruta Fua who was a cleaner at the school said in her affidavit that on 20 December 2006 she was working outside the school office and she could see the chairman and the plaintiff inside the plaintiff’s office from where she was working. However, the witness said under cross-examination that she did not hear anything that was said between the chairman and the plaintiff. This witness also said in her affidavit that after the chairman left the office she saw that the plaintiff’s demeanor had changed from being a happy person to someone who appeared upset. Ruta knew the plaintiff well as she was provided a lift in the plaintiff’s car each day to and from work.
22. With respect to the plaintiff, I was not impressed with the evidence she gave under cross-examination by counsel for the defendant. At times, her answers were illogical and difficult to follow. At other times, she did not directly address the questions put to her by counsel for the defendant. Some of her answers were unnecessarily lengthy when the questions put to her by counsel for the defendant required a short answer or a brief explanation.
23. The chairman of the defendant in his affidavit repeatedly denied that he informed the plaintiff on 20 December 2006 that her employment had been terminated on the principal’s recommendation. He said that when he met with the plaintiff on 20 December they had informal discussions and they went through her performance appraisal done by the principal which she claimed was unfair. She also claimed that the school had taken sides with her sister who had lodged a complaint with the principal. She further claimed that the defendant was going to dismiss her on that basis as well as on the basis of the other complaint dated 8 December 2006. The chairman also said that the plaintiff was unhappy with the principal and was looking at her options and he suggested that if she was not interested in working for the school anymore then she could take early retirement and he could take it to the Board for consideration to pay her annual bonus as a parting gift as well as any outstanding annual leave that was owed to her. They then parted amicably after agreeing that the plaintiff would appear before the Board at its next meeting scheduled for 24 January 2007. The plaintiff’s performance appraisal was placed before the Board at its meeting on 24 January 2007 but the plaintiff did not turn up.
24. Under cross-examination by counsel for the plaintiff, the chairman said that on 18 December before the principal left for New Zealand, the principal called and informed him that on 15 December the plaintiff had requested to see the Board but the principal told her that was not practical. So the chairman called the plaintiff the same day to set an appointment to meet with him. He said that the purpose of the proposed meeting was to discuss with the plaintiff her performance appraisal and the withholding of her bonus. It was also to explain to the plaintiff that she could appeal the principal’s decision to the Board. At the meeting, the chairman said that he also explained to the plaintiff that he did not have the power to reverse the decision of the principal on his own. That had to be done by the Board. The chairman also confirmed that the plaintiff told him that there was tension between herself and the principal. He then suggested to the plaintiff that if she was not happy working with the principal then she could look at early retirement if she wanted to take that option and he would take it to the Board to offer her a parting gift of whatever entitlements that could be given to her under her contract of employment. However, the plaintiff did not want to resign.
25. The chairman also said under cross-examination that the plaintiff brought up the issue about the two letters of complaint from the parents of two of the students at their meeting but that was in relation to her performance appraisal and non-payment of her bonus but not in relation to any discussion on termination. The chairman further said that he informed the plaintiff that he would convene a meeting of the Board in January 2007 and the first item on the agenda would be for her to present her side to the Board. If the Board decided she should be paid her full bonus or part of the bonus or not paid at all then that would be the decision of the Board. The chairman also confirmed that the plaintiff had told him that she had sought legal advice on what had transpired at her meeting with the principal.
26. When counsel for the plaintiff asked the chairman whether the plaintiff had said to him on 20 December that it was too late to call a meeting of the Board after he had made the decision to terminate her employment, the chairman replied there was no decision to terminate. The plaintiff’s position seems to be inconsistent here. She claimed that the principal had told her on 15 December that the Board had decided to withhold payment of her bonus and to terminate her employment and she asked the principal two or three times to go with her to see the Board. But she then said that when the chairman told her that a meeting of the Board would be held on 24 January 2007 to hear her side she decided it was then too late to attend the meeting as a decision had been made to terminate her. But that was also the same complaint she had made earlier on 15 December when she said that the principal told her that the defendant had decided to terminate her employment and yet she requested a meeting with the defendant. On that occasion the plaintiff wanted to see the defendant and requested the principal two or three times to go with her to see the defendant but the principal replied that was not possible.
27. After careful consideration of the evidence of the plaintiff and that of the chairman in relation to what transpired at their meeting on 20 December, I have decided to prefer the evidence of the chairman. I found the evidence of the chairman more reliable and credible. I have already decided that the principal did not say to the plaintiff at their meeting on 15 December that the defendant had terminated the plaintiff’s employment. That is consistent with the terms of the covering letter of 15 December 2006 which the principal gave to the plaintiff at the said meeting and was read by the plaintiff. There was no mention or any indication of termination in that letter and the purpose of the meeting on 15 December was for the principal to inform the plaintiff about non-payment of her bonus and not about any termination. So when the principal called the chairman on 18 December and gave the chairman a brief rundown of what had transpired at his meeting with the plaintiff on 15 December, the principal could not have informed the chairman that he, the principal, had told the plaintiff that her employment was terminated. Thus, I prefer what the chairman said that there was no decision to terminate the plaintiff and there was no recommendation from the principal to the defendant to that effect and that he had never informed the plaintiff that her employment had been terminated on the principal’s recommendation. That could not have been done as of 20 December because the defendant did not meet again until 24 January 2007. Furthermore, the plaintiff was paid her salary up to 6 February 2007 as shown from the principal’s letter of 7 February 2007 to the plaintiff. Such payment of salary would be inconsistent with the plaintiff’s claim that her employment was terminated on 15 December and then again on 20 December. It is also clear from the principal’s letter of 7 February that he had been expecting the plaintiff to return to the school to resume her work. The defendant also met on 24 January as agreed between the chairman and the plaintiff to hear the plaintiff’s concerns but she chose not to turn up. There was also throughout all this time no letter of termination from the defendant to show that the defendant had decided to terminate the plaintiff’s employment. One would have expected that if the defendant had indeed terminated the plaintiff’s employment as claimed by the plaintiff there would have been a written communication from the defendant to that effect. But there was none.
28. In all the circumstances, the evidence for the defendant that there was no termination or indication of termination from him of the plaintiff’s employment is to be preferred as opposed to the evidence of the plaintiff. To put the matter in another way, I am not satisfied that the plaintiff had established on the balance of probabilities her claim in wrongful termination or wrongful dismissal.

Conclusion:

29. The plaintiff’s claim is therefore dismissed. Counsel for the defendant is to file and serve memorandum as to costs in 7 days. Counsel for the plaintiff to file memorandum in the next 7 days.

PATU F M SAPOLU
Temporary Justice of the Supreme Court and
Former Chief Justice