Asiawoh v The Proprietor Hamburg Int. Sch. (IL/0143/2019) [2025] GHAHC 82 (30 July 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, INDUSTRIAL AND LABOUR DIVISION 2 HELD IN ACCRA ON WEDNESDAY THE 30TH DAY OF JULY 2025 BEFORE HER LADYSHIP JUSTICE ANANDA J. AIKINS (MRS) JUSTICE OF THE HIGH COURT. SUIT NO. IL/0143/2019 JAMES KWASHIE A. ASIAWOH PLAINTIFF VRS THE PROPRIETOR HAMBURG INT. SCH. DEFENDANT DOME-ACCRA COUNSEL FOR THE PLAINTIFF: EMMANUEL DEI-TUMI ESQ., JUDGMENT 1. INTRODUCTION On the 4th of September 2019, the Plaintiff sued the Defendant who is the proprietor of Hamburg International School, located at Dome in Accra. On the Writ and Statement of Claim were endorsed the following reliefs:- ‘DAY’ Page 1 of 12 (a) Declaration that the manner in which the Plaintiff’s appointment was terminated was wrongful and unlawful. (b) Declaration that the termination of the Plaintiff’s appointment is a violation of the School’s Constitution and its Code of Ethics. (c) Declaration that the Plaintiff has not committed any offence against the School that warrants his dismissal. (d) Declaration that Plaintiff is entitled to damages or compensation for wrongful, unlawful and illegal dismissal. The Defendant in his Statement of Defence filed on 13th December 2019 denied liability for the claims made by the Plaintiff and stated that the decision to terminate the appointment of the Plaintiff was taken by the School’s Management and not him alone, as the Proprietor of the School and that the Plaintiff was not entitled to any of the reliefs sought. 2. ISSUES FOR TRIAL At the close of pleadings the parties filed their respective issues for the consideration of the Court. The Plaintiff, who represented himself throughout the proceedings, filed his application for directions on the 3rd of February 2020 and the defendant’s counsel filed the additional issues on 20th February 2020. The Court thereafter set down the following issues for determination: ‘DAY’ Page 2 of 12 (1) Whether or not the Plaintiff was negligent in the performance of his duties? (2) Whether or not Defendant was entitled to terminate the Plaintiff’s employment contract? (3) Whether or not in terminating the plaintiff’s employment contract, the Defendant violated the school’s constitution and or its Code of Ethics? (4) Whether or not the termination of the plaintiff’s employment contract was lawful? (5) Any other issues arising from the pleadings. 3. BRIEF FACTS The uncontroverted facts of this case are that the Plaintiff was once employed as a school teacher at the Hamburg International School, situate at Dome in Accra. He was employed on the 4th of July 2006 and in the year 2019 in the month of July, his services were dispensed with. The Plaintiff was obviously dissatisfied with the turn of events and therefore he issued a writ of against the Defendant who is the Proprietor of the Hamburg School, seeking the reliefs endorsed on same. 4. PLAINTIFF CASE The Plaintiff says he was unlawfully dismissed by the Defendant from the employ of the Hamburg International School by the Defendant and that his dismissal was a result of his refusal to abide by an alleged directive given by the Defendant to all teachers of the School not to allow students and pupils of the school to use the washroom in the school during class hours. He said he allowed two class 1 pupils to use the washroom during class hours because they ‘DAY’ Page 3 of 12 had both soiled themselves with urine and vomit in class and that the defendant became annoyed with his conduct and therefore Defendant dismissed him by word of Mouth without issuing any letter of dismissal to him. The Plaintiff described the alleged action of the Defendant as unlawful and an infringement of the school’s code of ethics because the Plaintiff claimed he was not accused of any misconduct or offence nor was he found guilty of misconduct by any disciplinary committee which was a requisite for dismissal by the school. The Plaintiff further claimed that he was prevented from participating in the vacation classes organised by teachers of Hamburg School during the 2019 vacation period in August of that year and further that the defendant did not give him any dismissal letter nor was any reasons assigned by the defendant for his dismissal. The Plaintiff requested the Court to award him damages against the Defendant for unlawful dismissal. 5. DEFENDANT’S CASE The Defendant claimed that, the Plaintiff was not dismissed but rather his employment contract with the school was terminated in accordance with law. The Defendant claimed that the decision to terminate the Plaintiff was taken by the management of the School and not by him solely. The Defendant also claimed that there was no obligation on the school to issue a formal letter of termination to the Plaintiff. He stated that the Plaintiff was duly paid his three months’ salary in lieu of notice. He also denied that the Plaintiff was prevented from partaking in the school’s vacation classes organised by the teachers of the school and added that even if the Plaintiff was indeed prevented from participating in the vacation classes, it cannot be said that it was the ‘DAY’ Page 4 of 12 defendant who prevented the Plaintiff from participating in the said classes since the classes were organised by the teachers of the school and not the defendant. It was the further case of the Defendant that it was never true that he had issued threats to the Plaintiff for allowing two pupils who had soiled themselves to use the washrooms during class hours. The Defendant also accused the Plaintiff of poor performance and of negligence in the conduct of his duties in the school and the particulars of negligence were given by him as follows:- (i) That some time in or around 2018, it was brought to the attention of the Defendant that the Plaintiff had looked unconcerned when two class one pupils, aged about 6 years each soiled themselves with vomit and urine respectively in class. (ii) That the Plaintiff failed in his duty to ensure that the pupils were attended to and cleaned up as a teacher at the lower primary division should do. (iii )That the pupils had to go to the washrooms by themselves to clean up without any adult supervision. The defendant insisted that the termination of the Plaintiff’s employment contract was regular and that the continuous engagement of the services of the Plaintiff was subject to good performance and not tied to the age of the Plaintiff. 6. BURDEN OF PROOF ‘DAY’ Page 5 of 12 The evidential duty imposed on parties to a civil matter by the Evidence Act of 1975 (Act 323) is always proof on the balance of probability except where a crime is alleged in a civil action that the threshold is raised to proof beyond reasonable doubt. Indeed as a general rule, the burden of proof on a Plaintiff includes both the persuasive burden and the evidential burden. In the decided case of Barkers-Woode vrs Nana Fitz [2007- 2008]2SCGLR page 879 at p.880 the Supreme Court through Dr. Date-Bah JSC stated as follows: “The common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim.” In this instant case before me, it is the Plaintiff’s case that his employment contract was unlawfully brought to an end by the Defendant, therefore the Plaintiff bears the burden of leading persuasive evidence to convince the Court that indeed his employment contract was ended unlawfully by the Defendant. The Court believes that a determination of this main issue as to whether the termination of the Plaintiff’s contract was lawful or otherwise will determine the need for a discussion of the other issues, which to this Court, are not really germane to the resolution of this matter. 7. RESOLUTION OF ISSUES 1. Whether the termination was lawful? ‘DAY’ Page 6 of 12 In his statement of claim filed on 4th September 2019, the Plaintiff stated in his paragraphs 3 and 4 that his appointment was terminated by the Defendant (the Proprietor of Hamburg School) on the 30th of July 2019 and that the termination was effective 30th September 2019. He also stated that the termination was communicated to him verbally without any written letter of termination given him. Then in paragraphs 8 and 9 of the same Statement of Claim, the plaintiff claimed that he was dismissed by the Defendant without any reasons being assigned by the Defendant for the dismissal. The Plaintiff further claimed that his dismissal was in violation of the code of ethics of Hamburg School, its constitution and also in violation of the plaintiff’s letter of appointment. In support of his case, the plaintiff tendered his letter of appointment and the constitution of Hamburg School as his exhibit ‘JKAA1’ and ‘JKAA2’ respectively. He also tendered the Code of Ethics as his exhibit ‘JKAA3’. A careful read of the Plaintiff’s appointment letter (exhibit ‘JKAA1’) shows that clause 4 of the letter provides for the cessation of the employment relationship between the parties. The said clause states as follows: “4. The appointment is terminable on either side by giving one (1) month’s notice or upon payment of one (1) month’s allowance in lieu of notice, but the school reserves the right to terminate the appointment on grounds of inefficiency, indiscipline or misconduct.” ‘DAY’ Page 7 of 12 The import of this clause is clear. Each party to the contract can terminate same by a month’s notice or the payment of a month’s wages in lieu of notice. Per the Plaintiff’s own answers in cross examination, he claimed he was paid an amount of GHC1,300.00 which represented his two months’ salary after the termination of his appointment and that Defendant deposited the said amount in his bank account after he had sued the Defendant in September 2019. (See page 3 of the record of proceedings for 20th March 2023. The Defendant himself did not testify but his witness who testified on the 24th of May 2024, stated in paragraph 19 of his witness statement filed on 1st March 2024, that the Plaintiff had been paid three months’ of his salary in lieu of notice of his termination. The witness said the management of Hamburg School decided to offer the Plaintiff five months’ salary in lieu of notice but decided to hold on to the remaining two months because the Plaintiff commenced this writ against the Defendant who is the proprietor of the School. According to the witness, the constitution of Hamburg school provided that when the services of an employee are disengaged, the employee is given compensation in appropriate cases. He stated that an employee who has served for more than thirty-six (36) months is given compensation of an amount equal to three (3) months of the said employee’s salary. The witness did not tendered any evidence in proof of the payment of the 3 months’ salary into the account of the Plaintiff. However the Plaintiff‘s own exhibit “JKAA4’ which is attached to his Supplementary Witness Statement shows that the defendant paid into the ‘DAY’ Page 8 of 12 plaintiff’s account an amount equivalent to Plaintiff’s three months’ salary for the months of August, September and October 2019 and therefore my finding of fact is that Plaintiff received three months’ salary in lieu of notice for his termination. This three months’ salary is more than the one month salary in lieu of notice that he is entitled to, per his contract of appointment (exhibit JKAA1). The Plaintiff sought to create the impression that he was dismissed by the defendant and that the dismissal was contrary to the school’s Code of Conduct but the evidence on record does not support the Plaintiff’s assertion that he was dismissed by the Defendant. It appears to this Court that the Plaintiff had issues with the fact that his termination was communicated to him orally by the Defendant. The plaintiff was expecting a written termination letter with reasons assigned for the termination. The defendant on the other hand pleaded that the Plaintiff was informed that his services were no longer needed by the school. He also said that there is no requirement in the constitution and the code of conduct of Hamburg School that mandates the Defendant to give a written letter of termination to the Plaintiff. I have perused both documents which were tendered by the Plaintiff as exhibits ‘JKAA 2’ and ‘JKAA3’ and I have not seen any provisions in these documents that require that a written notice of termination of employment must necessarily be served on an employee before his/her services are dispensed with. What is provided for in the School’s Constitution is the payment of one to three months’ salary in the event of the disengagement of an employee (see section 15(m) of the Constitution) that is, exhibit ‘JKAA 2’ which was also tendered by ‘DAY’ Page 9 of 12 the Defendant’s witness as his exhibit 1. A perusal of the plaintiff’s contract of employment (exhibit JKAA1) also does not reveal any provision for the service of a written notice of termination. The employer/employee relationship is a consensual contractual relationship governed by a set of terms that are either express or implied. Just like any other contract, the employment contract can be determined or brought to an end in numerous ways provided under common law or by legislation. At common law the contract of employment may be terminated by either party to the contract without apportioning any reason for the termination. The common law position was succinctly dealt with in the case of Kobi v. Ghana Manganese Co. Ltd [2007-2008] 2 SCGLR 771, where the Supreme Court, speaking through Atugubah JSC, stated as follows: “What I consider to be trite learning on this issue is that a contract of service is not a contract of servitude. That being so, even if the contract of employment is silent on the question whether it is terminable, the common law implies a right to terminate the same by either side upon reasonable notice to the other... Subject to this, the right to terminate a contract of service is dependent on the terms of the contract and must be exercised in accordance therewith”. ‘DAY’ Page 10 of 12 Indeed section 17 of the Labour Act, 2003 (Act 651) codifies the common law position. The said section states as follows: “(1) A contract of employment may be terminated at any time by either party giving to the other party, (a) In the case of a contract of three years or more, one month’s notice or one month’s pay in lieu of notice ; (b) In the case of a contract of less than three years, two weeks’ notice or two weeks’ pay in lieu of notice; or (C) In the case of contract from week to week, seven days’ notice. (2) A contract of employment determinable at will by either party may be terminated at the close of any day without notice. (3) A notice required to be given under this section shall be in writing. (4) The day on which the notice is given shall be included in the period of the notice” Even though Act 651 per its section 17(3) provides that a notice of termination should be in writing, the parties to the employment contract i.e. exhibit ‘JKAA1’ did not see the need to incorporate this requirement in their personal contract, the Plaintiff therefore cannot insist that he should have been given a written notice of termination by the Defendant. The evidence before the Court clearly show that the Defendant complied with the terms of the contract that existed between the Plaintiff and the school by paying him more than the one month salary in lieu of notice that the Plaintiff was entitled to. The Defendant was not obliged to give reasons for the termination and therefore it is the ‘DAY’ Page 11 of 12 finding of fact by this Court that the termination of the Plaintiff’s employment contract was done lawfully. 8. CONCLUSION The court, after making a finding of fact that the Plaintiff’s employment contract was lawfully ended by the Defendant, is of the opinion that the remaining issues concerning the alleged negligence of the Plaintiff and also whether the Plaintiff had allegedly committed an offence under the rules of the school are of no importance. The Defendant was not obliged to give any reason for the termination of the plaintiff because the term on termination in employment contract was complied with by the Defendant. In the light of the evidence adduce before the Court, it is of the opinion that the Plaintiff has not been able to establish his case on the preponderance of probabilities and he is therefore not entitled to the reliefs he seeks. The case of the Plaintiff is dismissed and the Court awards cost of GHC10,000.00 against the Plaintiff in favour of the Defendant. (SGD.) H/L ANANDA JULIANA AIKINS (MRS.) JUSTICE OF THE HIGH COURT ‘DAY’ Page 12 of 12