THE AUTHENTICITY OF THE APPOINTMENT LETTERS
167 A major issue in the case relates to the authenticity of the ostensible hard copy appointment letters produced to Messrs Matson and Schmidt on 27 November and 17 December 2012. To understand this aspect of the case, the reader should refer to the standard form of letters of this kind, set out in paras 13-23 above. The applicants allege that, on the morning of 23 November 2012, Ms El-Leissy accessed the electronic form of each of these letters on her computer, deleted what was shown on the letter as the teacher's "tenure", substituted as the teacher's tenure the words "Full time", printed the resulting altered file (or at least the first page thereof), saved the file as modified, and replaced the first page of the hard copy letter as held in the respondent's files with the new first page so printed. It is alleged that Ms El-Leissy did this on the instruction of Mr Salman.
168 There were two features of these letters, in the form produced to Messrs Matson and Schmidt, that opened the way for the applicants to make these allegations. The first was the alleged alterations themselves. In a number of cases, as I shall describe below, the applicants have been able to tender the original, unaltered, versions of these letters from the records kept by the teachers themselves. Those letters did not describe the tenures of the teachers concerned as "Full time". Rather, they described their tenures as "Replacement", or similar. The use by the respondent of the expression "Full time" as an indication that the employment in question was ongoing rather than fixed term appeared to have been clear enough to the respondent and its teachers in practice, but it contributed to an internal contradiction in the evidence of Mr Salman in this case.
169 In his affidavit, Mr Salman said that the description of tenure as "Full time" was "a common term used at the Academy on documents of this type, in contradistinction to replacement appointments". He said that all contracts were regarded as ongoing ones, unless they were stated to be "replacement" in the "tenure" section of the document concerned. He said that it was in the "time fraction" section of a document that the discrimination between full time and part time was made. But this evidence was contradicted by evidence given by Mr Salman himself under cross-examination. Shown the "tenure" section of Ms Awari's appointment letter, Mr Salman said that the wording "Full time" did not mean that she was a permanent, or ongoing, employee. Rather, it meant that she was employed full time as distinct from part time. Even when his attention was drawn to the disconformity between this understanding of the "tenure" section of the document and the reference to Ms Awari's time fraction being 0.8, Mr Salman adhered to his evidence that "Full-time" did not refer to the ongoing nature of the engagement. Counsel for the applicants submitted that "Mr Salman's oral evidence defies logic and all the other relevant evidence in the proceeding." Counsel for the respondents accepted that description of the situation, adding that it was "not clear why [Mr Salman's oral] evidence was given, when it was inconsistent with his affidavit", and that it was "self-evident that Mr Salman's description in his affidavit accords with reality and that his explanation given under cross-examination does not." In the light of this measure of furious agreement, I accept that, when an appointment letter identified a teacher's tenure as "Full time", an ongoing, or permanent, appointment was intended.
170 The second feature of these appointment letters that enabled the applicants to make their allegations of manipulation was that the first page of every letter was on a letterhead which had been introduced only in recent times - in the submission of the applicants, more recently, in many cases, than the date upon which the relevant appointment letters had been signed by the teachers concerned.
171 The respondent's original letterhead differed from its new letterhead in a number of ways, but the most distinctive difference was the adoption of a new logo which, in most documents at least, appeared in the top left-hand corner. What I shall refer to as the original logo was the one shown on the left below, while the new logo was the one shown on the right:
172 In his affidavit, Mr Matson said that, from his exposure to the correspondence sent by the respondent and to documents provided to him by the applicant's members and other employees, he formed the view that the letterhead with the new logo commenced to be used by the respondent on about 13 October 2011.
173 The respondents advanced an evidentiary case which, if accepted, would have it that the new logo was in use as early as 2009. Hend Eissa is employed by the respondent as a Teacher and Publications Co-ordinator. She commenced employment in 2003, as a teacher aide. At about that time, she assumed responsibility for publications for the respondent, and has retained that responsibility since. Due to her interest in art and graphic design, she redrafted the designs of the logo used by the respondent over the years. She designed the new logo in 2009, using a computer program called "Illustrator". She no longer has the electronic file which contained this design, but the general timing of her work may be seen from a letter to her from Mr Salman dated 11 May 2009 in the following terms:
Your design of the new letterhead is very innovative and I prefer it to be used as soon as we can. I believe it represents the Academy well in its new phase. Congratulations! Well done.
However, we may need to feel the reaction of other heads and organisations to the new design, especially [sic] we are moving from the yellow and green colors to the blue color.
Could you please arrange with the printer to make limited copies for this year, and if it is acceptable to all then we can print the bulk as we may need for few years (eg 5000 or more). We could try it all this year.
Could you please let me know how are you going with the printer before you do anything?
Ms Eissa also said that, once a new logo was introduced by the respondent, the existing stationery with the old logo would continue to be used until stocks were exhausted. At the same time, the new logo would commence to be used in some sections of the school. She recalls that the original logo was still being used as late as 2012. She was not cross-examined.
174 Mr Salman confirmed that he had sent the letter dated 11 May 2009 to Ms Eissa. He said, in chief, that the new "blue diamond" letterhead commenced to be used by the respondent in 2009. He was not cross-examined on these matters.
175 The situation is, therefore, that, from about the middle of 2009 until some time in 2012, the respondent used both the original logo and the new logo on documents which it prepared. The circumstance that a document bore the new logo would not, therefore, be conclusive evidence that it had been created after about October 2011. It might, however be relevant to the question whether an appointment letter provided to Messrs Matson and Schmidt on 27 November 2012 was the same document as contained the offer which had been accepted by the teacher concerned.
176 That brings me to the controversy as to the legitimacy of the appointment letters which were provided to those representatives of the applicant on that day. Here I would commence by organising the teachers referred to in para 130 above, plus Ms Badawi, into the following categories:
(a) teachers who, on the respondents' admission, were engaged for a fixed term in the 2012 school year - Ms Borova, Ms Sheehan, Ms Onder and Ms Cansiz;
(b) teachers whose engagements for the 2012 school year have been found to have been fixed term - Ms Daniel, Ms Awari, Ms Oz, Ms Ahmed and Ms Chaarani;
(c) other teachers - Ms Alshakshir and Ms Badawi.
177 Dealing first with category (a), there is a feature of the respondents' case about these teachers that is curious, to say the least. As mentioned earlier, it was the respondents' submission that an indication on a teacher's appointment letter that his or her tenure was "Full time" was a statement that he or she was employed on an ongoing, rather than on a fixed-term, basis. The letters in respect of all four of these teachers provided to Messrs Matson and Schmidt on 27 November 2012 gave "Full time" as their tenure. But the respondents admitted that they were employed on a fixed-term basis. Whatever else may be said about these letters, therefore, it is clear that they did not reflect the terms of the contracts under which the teachers concerned were employed.
178 The next question is whether these letters had always been wrong, or whether they were made wrong by an alteration done at some stage. The applicants' inferential case that such an alteration was made in the days preceding the visit of Messrs Matson and Schmidt on 27 November 2012 is a strong one.
179 The first page of the appointment letter actually signed by each of these four teachers is in evidence. Each was on the old letterhead, with the original logo. Each identified the tenure of the teacher concerned as "replacement". There was no suggestion in the evidence that any of these teachers had ever been provided with a version of the appointment letter that described her tenure as "Full time".
180 Well after 27 November 2012, the version of Ms Onder's appointment letter that was in her own possession was the one she executed in November 2010. In May or June 2013, Ms Onder received a subpoena (issued on the request of the applicants) to provide her employment documents to the court. Some time later, she was required to meet Mr Salman in the board room at the primary campus that he used as an office when he was working at that campus. Mr Salman asked her about the subpoena, and she responded that she had received it, and that she was glad that it was not "a big secret." According to Ms Onder's affidavit, Mr Salman then said that the applicant was trying to destroy the school because it was a Muslim school. He asked her whether she had sent a copy of the contract, to which she responded in the negative. He asked her, "you are ongoing aren't you?", to which she replied in the affirmative. He then handed her what she described in her affidavit as "a first page of a contract with … a colour copy that looked like the actual front page of a contract and a black and white photocopy of the colour copy." It was the front page of an employment contract in her name, with the new logo, and it stated her "tenure" as "Full Time". Mr Salman told her to replace the front page of her existing contract with the page he had handed her. He offered to arrange for the respondent to send her contract to the court in answer to the subpoena, but she declined that offer.
181 Ms Onder exhibited to her affidavit both her original contract and the two pages given to her by Mr Salman. The latter were, as she said, a colour version of the front page of a contract in her name, and a black and white photocopy of that page. That page bore the new logo and described her tenure as "Full time"; that is to say, it was the front page of the version of the appointment letter that had been provided to Messrs Matson and Schmidt on 27 November 2012.
182 According to Ms Cansiz's evidence, at some point after she received a subpoena issued on the request of the applicants, she was called into Mr Salman's office, and he asked her for a copy of her contract. She had the original of the contract in her possession - from which I infer that she must have gone to the meeting knowing what the subject of the discussion would have been - and she gave it to him. Mr Salman offered to send Ms Cansiz's document to the court in compliance with the subpoena, saying, "I will take care of it." Ms Cansiz accepted that offer. But the appointment letter returned to the court on her behalf was not the one she had left with Mr Salman. It bore the new logo and described her tenure as "Full time". Shown that letter in the course of her oral evidence, she said that the document which she had signed did not so describe her tenure. The subpoena, I would add, was issued on 15 May 2013 and Ms Cansiz's contract was received by the court on 24 May 2013.
183 In chief, Mr Salman, denied having received any documents from Ms Cansiz concerning the subpoena, he denied having sent any documents to the court on her behalf, and he denied having had a conversation with her as to how she could send documents to the court. Under cross-examination, Mr Salman was shown the transcript of an interlocutory hearing in this proceeding on 17 December 2014, on which occasion he was asked (also in cross-examination) to name the teachers with whom he had spoken about the subpoena. Ms Cansiz was the only such teacher whom he named unprompted. Challenged to reconcile his evidence on these two occasions on this subject, Mr Salman's response was quite unsatisfactory. By contrast, Ms Cansiz's evidence throughout was consistent and credible. I accept her evidence about the conversation which she had with Mr Salman, and I reject his denials. I find that Mr Salman offered to send Ms Cansiz's contract to the court in compliance with the subpoena addressed to her, that she accepted that offer and gave him the contract, but that he caused another document - one which corresponded with the form of the contract which had been provided to Messrs Matson and Schmidt on 27 November 2012 - to be sent to the court in place of the letter which had been given to him by Ms Cansiz.
184 The respondent called no direct evidence as to the timing or circumstances of the undoubted alterations made to the appointment letters of the four teachers in category (a). Indeed, counsel for the respondents accepted that the version of these letters shown to Messrs Matson and Schmidt on 27 November 2012 differed from the originals in each case. When it came to assisting the court to understand the evidence so far as it may have thrown light on when, by whom and in what circumstances the alterations were made, counsel went no further than to propose that, if the court were to find that the letters were altered "a long time ago", in the way identified by the respondents and their witnesses as happening from time to time, unrelated to the proceedings in FWA and the inspection on 27 November 2012, the applicants could not make out the element of "intention" for the purposes of s 502 of the FW Act.
185 What counsel meant by the way that appointment letters were altered from time to time was, presumably, a reference to the evidence given by Mr Salman in his affidavit affirmed on 4 April 2014:
Changing the front pages of contracts kept on personnel files is not an everyday practice, but I am aware of it occurring from time to time, in circumstances such as this, to record circumstances where the Academy's records, most notably the Board minutes, record a purported change to the status of a particular teacher. If this is done, there remains only one copy of that teacher's contract in the Academy's possession, and that is the document as updated. The old contract, which has now had the front page replaced, is not otherwise kept anywhere.
As far as I am aware, the only explanation for why the front page of Ms Borova's contract was changed, and the one I believe to be true, was because of the apparent change in Ms Borova's employment status (as described above).
While Mr Salman was here dealing with the circumstances of Ms Borova specifically, I understood him to carry that line of thinking over into those of all the teachers whose appointment letters had been altered. In her affidavit affirmed on 3 April 2014, Ms El-Leissy said that she too was "aware of a practice" whereby the front page of a teacher's appointment letter was replaced "after the nature of that teacher's engagement has been changed".
186 The "apparent change" referred to by Mr Salman in the passage most recently set out above was something which he surmised might have occurred in February 2011, although it is clear that he had no actual recollection of it. According to the respondents' evidence, there was a Board meeting on 24 February 2011 which concerned, amongst other things, the status of these four teachers. Mr Salman's report, as Academy Head, to that meeting contained the following item:
Staffing. - 2011 (Board Endorsement)
The following staff members have been appointed for 2011 school year to fill out ongoing available positions:
Filiz Cansiz, Summeya Borova, Derya Onder, Adrian Pop, Clair Sheehan, Hanan Hamed (0.6) Alanur Aydemir(Aide), Cavidan Turemis(Aide), Kelly Smith.
According to the minutes of the meeting, the Board "approved the appointment of the following new staff members to fill out the available ongoing positions for 2011", the teachers thereafter named including those mentioned in Mr Salman's report.
187 Mr Salman said that it "appeared" that the respondent "sought to change Ms Borova's employment status from replacement to permanent full-time (primary school generalist), with effect from 27 January 2011." That statement was based on an unsigned "Change of Status Notice" addressed to Ms Borova and dated 7 February 2011. There was no evidence that such a notice was ever given to Ms Borova.
188 In the same affidavit, Mr Salman said that at least Ms El-Leissy, and more recently Mr Boyaci as well, had blank pro-forma "Change of Status Notices" on their computers. He said that the "usual practice would be to produce (usually by Ms El-Leissy) and then provide documents of this type to teachers by hand, and to retain a copy on the teacher's personnel file." The document which related to Ms Borova was not, however, on her personnel file, and Mr Salman did not know why not. The version which he exhibited to his affidavit, and which provided the basis for the evidence to which I have referred, was obtained from the electronic records of the respondent on Ms El-Leissy's computer.
189 The notice bore the new logo and, formal parts omitted, was in the following terms:
Ms Borova
As there is an ongoing vacancy available at the Academy, you are advised that the following change(s) to your status has been made
CURRENT CLASS: Replacement - Primary Generalist - 27/0l/2011
NEW STATUS: Full time - Primary Generalist - 27/01/2011
EFFECTIVE FROM: 27/01/2011
SALARY ADJUSTMENT: Nil
OTHER DETAILS:
All conditions of the "Appointment Notice" still apply, except for the circumstances stated above.
Your case will be submitted to the Academy Board to approve your ongoing appointment in the [sic] due course.
The notice was dated 7 February 2011, and there was provision for the document to be signed by Mr Salman but, as indicated above, the version in evidence had not been signed.
190 Under cross-examination, Mr Salman was firm in his evidence that he gave no instruction to anybody to generate this change of status notice. He pointed out that it did not bear his signature. Rather, his evidence was that this notice, and others of the same date to which I shall refer, were issued by the "office" - by Ms El-Leissy, I take it - as a matter of course in consequence of a resolution of the Board authorising the engagement of the teacher concerned on an ongoing basis.
191 The ostensible timing of things disclosed by Mr Salman's report, the meeting of the Board and the change of status notice which related to Ms Borova does not support Mr Salman's evidence in cross-examination: the notice predated the meeting by more than a fortnight and could not, therefore, have been generated in consequence of the resolution of the Board. It is possible, I suppose, that Ms El-Leissy generated the notice in anticipation of the meeting, but she is unlikely to have dated it 7 February 2011. Indeed, when taken to the notice during cross-examination, Ms El-Leissy pointed out that it had not been signed. She could not remember creating it. In the context of a relevantly identical notice, concerned with the status of Ms Sheehan, Ms El-Leissy said that it did not make sense that it specified as the effective date of her new status the same date as the date upon which she had been engaged under her original appointment letter. She said that this notice, and other like notices, were "very, very wrong". The tenor of her evidence, as counsel moved through the circumstances of various teachers in similar situations, was that she would not discriminate between them in her reaction to these, essentially identical, notices. Clearly Ms El-Leissy's evidence provides no basis for a supposition that the date on the notice relating to Ms Borova was the result of her own anticipation of a relevant Board resolution.
192 But that leaves the ostensible fact of the Board's resolution of 24 February 2011 itself. It was submitted on behalf of the applicants that the electronic properties of the word processor files that corresponded with Mr Salman's report to the meeting, and with the minutes of the meeting, demonstrate that modifications had been made on 23 May 2013. The respondents' rejoinder was to point out that this meant no more than that someone - presumably Ms El-Leissy - had opened and re-saved the file on that day. I shall deal with this technical question later in a different context. It is sufficient here to note the correctness of what the respondents say. It was on 23 May 2013 that Mr Salman, in response to a request from the respondents' solicitor, sent him an email with the minutes and report attached. That Mr Salman may well have opened, saved and closed these files on 23 May 2013 is, therefore, an explanation for the electronic properties of the files as viable as any other. And, as the respondents pointed out, it is an innocent one.
193 Thus I accept the authenticity of the minutes of the Board meeting on 24 February 2011, and of Mr Salman's report to that meeting. I find that the Board did resolve to approve the appointment of these four teachers to ongoing positions on the staff of the respondent. However, I reject the proposition, to the extent that it is advanced, that these teachers were notified by way of change of status notices. Neither in cross-examination of them nor in final submissions was it suggested by the respondents that any such notifications had in fact been given. All that can be said with confidence is that electronic versions of the notices were located on a computer some time after this proceeding had commenced. When, and by whom, those versions were created cannot be determined. Both Mr Salman and Ms El-Leissy disowned them.
194 On this apparently important issue, the respondents went no further than to lead the following evidence from Mr Salman:
I cannot now say why Ms Borova's status was sought to be changed from replacement to permanent, very soon after she was first appointed. The most obvious explanation from past experience, is that I was initially told or provided with information which would have supported the employment of Ms Borova on a replacement basis (at the time), but that by the time the school year came to commence, it was apparent that there were no actual vacancies which Ms Borova could replace. Hence, steps were taken to immediately change her employment status to ongoing.
That was, I would have to say, nothing more than conjecture on Mr Salman's part.
195 As the respondent accepts, the resolutions of the Board of 24 February 2011 never became contractually effective as between itself and the teachers concerned. Ms Borova, Ms Sheehan and Ms Onder each received an extension letter dated 4 November 2011 and a confirmation letter dated 14 November 2012. It is clear from the terms of these letters that, at least until the latter date, the respondent continued to treat these three teachers as employed on a replacement, as distinct from an ongoing, basis. There is no evidence that Ms Cansiz received a letter of either of these kinds. She received a Professional Class letter which she signed on 18 November 2012, but Mr Salman made it clear that the making of an appointment of that kind was not inconsistent with the employment of the teacher concerned on a fixed-term basis.
196 The relevance of the events of February 2011 can only be that it might have been the occasion on which appointment letters were, as a matter of routine, prepared to reflect the resolutions of the Board and held on file, notwithstanding that the apparent intent of those resolutions was not carried into effect contractually. I would have to say that, if the respondents were to be understood as proposing that such a possibility stood in the way of my accepting the applicants' case that the appointment letters were altered on 23 November 2012, it was for them to call the necessary evidence - this being a factual issue in the conduct of the respondent's business - and to make the necessary submission. Neither was done.
197 Additionally to the five teachers mentioned in the Board resolutions of 24 February 2011 the terms of whose appointment letters in November 2012 are presently controversial - the four now under discussion and Ms Ahmed - there were five staff members who were supposed to have benefited from those resolutions, including a physical education teacher called Adrian Pop who later resigned and as to the terms of whose appointment letter in November 2012 there could have been no controversy. The post-February 2011 form of the appointment letter in respect of none of those other teachers was put before the court by the respondents.
198 Tying off the situation as at February 2011, the resolutions of the Board were not put into effect contractually, the teachers concerned were not told of them and did not in fact have the basis of their engagements changed, and there is neither evidence nor submission that the respondent's file copies of the relevant appointment letters were then altered.
199 It was against this background that Mr Salman wrote his report to the Board meeting on 22 November 2012. He sought, and received, the endorsement of the Board for the changes to which I have referred, namely, for Ms Sheehan and Ms Onder to be offered ongoing positions and for Ms Cansiz to be offered a position in the Professional Class. As is apparent from his report, Mr Salman was keenly aware of the intention of Messrs Matson and Schmidt to seek access to non-member records held by the respondent. The report contains the following passage:
VIEU interference in 5 cases who had replacement contracts. The Union applied to the F.W.A. Commission to have access to non-members records; a move which we opposed. Details at the meeting.
Although Mr Salman was not cross-examined about this passage in his report, I infer from the use of the past tense apropos the respondent's opposition to the applicant's application in FWA that it was written after the hearing on 22 November 2012.
200 Taking an objective view of the matter, therefore, on 22 November 2012 the respondent was well aware of the forthcoming inspection visit by Messrs Matson and Schmidt, and of the fact that their concern was with the number of teachers whose contracts were for a fixed term. If there were teachers whom the respondent intended to be, or were already treating as, employed on an ongoing basis, there was a very strong incentive for Mr Salman to make sure that the respondent's documentary house was in order, as it were, before these officials of the applicant arrived. As at 22 November 2012, the respondent had not been notified of the date of their intended visit, in which circumstances Mr Salman must surely have apprehended that it might have occurred at any time on 24 hours' notice (s 487(3)). The prospect was, I infer, uppermost in his mind on that day.
201 From here I need to go to evidence which the applicants led about what they contended was the timing of the alterations made to various appointment letters held on the respondent's personnel files. The reliability of that evidence was vigorously contested by the respondents, and I shall turn to the nature of their objections presently. For the moment, however, I shall lay out the nature of the evidence. It relates to the four teachers whose circumstances are presently under discussion, but it relates to the circumstances of other teachers too.
202 In its office, the respondent uses a word processor program called "Microsoft Word". The application metadata generated by this program includes the time at which, and the date upon which, a document was created, last modified and last printed. Evidence of such matters was given by Andrew McLeish of STOPline Pty Ltd and Craig Macaulay of KordaMentha Pty Ltd. In their separate reports and their joint report, they explained the limitations of data of this kind, and expressed some reservations. For present purposes, however, it is sufficient to say that they did not suggest that a Word file reported in the application metadata to have been modified or printed at a particular time on a particular date was not then modified or printed, as the case may be (although "modified" in this context must be understood as including a situation in which the file was opened, saved and closed, without any actual changes necessarily having been made to the content thereof).
203 At the request of the applicants' solicitors, on 11 September 2014 the respondent provided the electronic files for the contracts of many of its teachers, including at least the contracts which had been provided to Messrs Matson and Schmidt in hard copy. Subject to such qualifications as may be appropriate, the application metadata for these files discloses the following sequence of activities on 23 November 2012, at the times indicated:
8.03 am Ms Oz's contract was printed
8.04 am Ms Oz's file was saved
8.05 am Ms Chaarani's contract was printed
8.06 am Ms Chaarani's file was saved
9.05 am Ms Ahmed's contract was printed and her file was saved
9.06 am Ms Daniel's contract was printed and her file was saved
9.08 am Ms Ahmed's file was saved
9.09 am Ms Borova's file was saved
9.10 am Ms Cansiz's file was saved
9.10 am Ms Badawi's contract was printed and her file was saved
9.11 am Ms Alshakshir's file was saved
9.28 am Ms Awari's contract was printed and her file was saved
9.35 am Ms Onder's contract was printed and her file was saved
9.54 am Ms Sheehan's contract was printed
10.15 am Ms Sheehan's file was saved
In all cases, these functions were performed on Ms El-Leissy's computer. From this evidence, the applicants ask me to infer that, at the times indicated in the table above, the Word files for the contracts correspondingly referred to were opened by Ms El-Leissy on her computer, in some cases the documents were printed, and in all cases the files were saved.
204 The respondents were highly critical of this aspect of the applicants' case. Their first point was that the documents from which the electronic properties were derived had not been collected in a forensically sound manner, such that the various dates recorded were assumed to be correct, as opposed to proven to be correct. That was based on an "assumption" to which Mr McLeish's report of 17 November 2014 was expressed to be subject. At the outset of his report, Mr McLeish said:
During the examination of the Microsoft Office Word files emailed to me, I have made a number of assumptions. Those assumptions have been made because the information that I am relying on in this report was not collected in a forensically sound manner and the original computer which created these word files was not examined by me. My assumptions are:
…
c. The date and time stamps in the examined word files are assumed to be accurate and reflect the actual date and time the word files were either created, accessed or modified ….
In the concluding passage of his report, Mr McLeish said:
As a result of my examination of the above documents I have made the following opinions and observations:
a. Because the original computer or other device used to create or modify the examined documents were not examined, it is assumed that the date and time stamps identified on each of the examined files are accurate and reflect the actual date and time the document was created, modified or printed.
205 The respondents also relied on the following assumption made by the experts in their joint report:
Without the ability to undertake a forensic examination of any computers or servers or other electronic device capable of storing electronic data (files) which have been used to create, modify or save any of the Microsoft Word files in this matter, it is difficult to draw absolute conclusions or likely consequences.
206 The respondents also relied on the following questions which had been addressed to Mr McLeish by the applicants' solicitors, and on the answers he gave:
Question 3: What are the times and date(s) on which the file was modified?
Response: The modified date and time stamp of a file represents the last date and time the document was opened and then saved to the computer. The date and time stamp is taken from the computer that was used to modify the document.
The information about the modified date and time stamp for each of the examined files is displayed in the 'Modified' field. …
Question 4: What is the date on which the file was last modified?
Response: In the documents examined above the modified dates and times are listed as 'Modified'. This date and time represents the last date and time the document was opened and then saved to the computer.
Microsoft Office does not keep a history of all the modified dates and time stamps. The modified date and time stamp represents the last modified date and time. To assist in identifying if a document has been modified on more than one occasion, the 'Revision Number' field and the 'Total Edit Time (Minute)' field may provide additional information in respect to the number of times a document has been modified or changed from its original state by a user.
I must say that, although these passages were referred to by counsel for the respondents in their submissions on this point, I cannot see how they help them. They appear to provide solid support for the applicants' case.
207 The respondents relied also on Mr Macaulay's answers to two questions posed to him by their solicitors, the first of which questions related to the probability that documents could be forensically analysed so as to recreate, or to identify the nature of, any modifications which had been made to them, and when they were made, and the second of which related to file system properties. As to the first, the subject of the inquiry, and Mr Macaulay's response, were concerned with an issue different from that presently under consideration. As to the second, although much attention was given to file system properties, or file system metadata as they were called, at the interlocutory stages in this proceeding, ultimately nothing turned on them at trial. I would add that file system metadata was also the subject of a question posed to the experts, and which they answered in their joint report, but, for the reasons given here, nothing further needs to be said on the subject.
208 Otherwise, I do not regard Mr McLeish's stated assumption, and the corresponding assumption expressed by both experts in their joint report, as compromising the utility of the electronic properties of various Word documents for the limited purposes proposed by the applicants. This is a civil proceeding. The files concerned were created, and maintained, on the respondent's computer system. There is nothing in the evidence before the court which raises even a whiff of suspicion as to the correctness of the times and activities recorded in these properties. For the court to refuse to derive such assistance as may be provided by these properties in the factual determinations made necessary by the applicants' allegations would be unrealistic and, I would have to say, manifestly unjust.
209 The respondents' second point was that "the assortment of various non-user related functions which can influence how and when these various dates are updated and recorded" presented a limitation to the utility of the properties on which the applicants relied. In part, the evidence to which the respondents adverted here related to file system metadata, and, for reasons expressed, I do not find such references particularly useful. However, they did advert to the following question posed to Mr Macaulay by their solicitors, and to the answer which he gave:
Q: What possible explanations are available to explain how the properties (file system and/or application) in a Microsoft Word can alter or be changed, and what circumstances or other actions or activities performed on a computer/document are capable of causing such alterations to those properties?
A: Both file system metadata and application metadata can be altered from a range of activities and processes by the system and/or user. As previously mentioned, the simple act of 'dragging and dropping' a file from one location to another can alter the file system metadata.
Application metadata, whilst not as susceptible to such simple acts, can also change from a number of activities. In the typical use of a Microsoft Word document, the act of opening the document and closing it, will generally not alter the application metadata relating to date/times, however the last accessed file system metadata may be updated.
Typically a user will need to save the document in order for the last modified application metadata field to change. However it may not always be necessary to alter the content of the document for this to occur.
This is valuable evidence, and I shall rely on it. It is not clear to me, however, how it provides support for the respondents' second point as I have expressed it above.
210 The respondents relied also on the answers which the experts gave, in their joint report, to the following questions:
5. If a person opens a Microsoft Word document, prints it and presses save and then closes the document, without making any changes to the content of the document, will the "date last modified" field in the application data change?
6. If a person opens a Microsoft Word document, presses save and then closes the document, without making any changes to the document and without making any changes to the document and without printing the document, will the "date last modified" field in the application metadata change?
In his answer to question 5, Mr McLeish said:
The answer to this question relates to the application Meta data of Microsoft Office suite of products, namely Word. In the example provided the 'date last modified' does not update because there has been no modifications made to the content of the word file.
Mr Macaulay's answer was:
The modification of the application metadata "date last modified" field in the above circumstances depends on a number of factors which includes but is not limited to the following:
a. The version of Microsoft Word used, for example in early versions of Microsoft Word the application metadata field referred to "last saved date";
b. The user settings and preferences which have been configured in Microsoft Word for the user; or
c. The mode in which the user opened the document. For example based on our assumption of the version of Microsoft Word used, if the user was to perform the above action in "read only" mode [a mode which opens a Microsoft Word document in a manner which does not allow the user to edit the content], the application metadata "date last modified" would not be updated. However, if the user was to perform the above action in "edit" mode [a mode which opens a Microsoft Word document in a manner which allow the user to edit the content], the application metadata "date last modified" would be updated. ….
By way of rejoinder, Mr McLeish said that he agreed with what Mr Macaulay had said, but added that the settings for the application in Microsoft Office for this matter had not been confirmed, as the original computer that created or modified the documents had not been made available for examination.
211 In his answer to question 6, Mr McLeish said:
The answer to this question relates to the application Meta data of Microsoft Office suite of products, namely Word. In the example provided the 'date last modified' does not update because there has been no modifications made to the content of the word file.
Mr Macaulay referred to his response to question 5 as sufficiently dealing also with what he had to say about question 6.
212 In the experts' concurrent evidence, Mr McLeish said that there were "non-user" ways in which the modification date for a particular document, as shown in the application metadata, could be affected without anyone having accessed the document. As examples, he referred to viruses and "updates through system properties, or from the computer system or the network which will alter the document status, being the date and time stamp, without actually accessing the document". Pressed to explain his reference to viruses, Mr McLeish said:
[I]t depends on the virus, I think. I mean, there's many strands of them, but typically what happens is it will go through and infect the file. If you've got an antivirus program, it will go through and cleanse a file. It doesn't actually physically open it as you and I see it opened up on the screen. It will look at the file, process the data and then move on to the next file. So that's why all these dates change.
The respondents made no suggestion that any of their computers were infected by a virus, and they led no evidence on the subject of the antivirus software, if any, which was installed on those computers.
213 Returning to the respondents' second point, although it may be theoretically valid to refer to an "assortment of various non-user related functions" which had the potential to interfere with the recorded properties of the electronic files for the documents which are controversial in this case, there was no evidence to suggest, and the respondents did not submit, that any such interference had in fact occurred. I do not regard this point as presenting a practical limitation upon the use of these properties for the purposes proposed by the applicants.
214 The respondents' third point was that "the many different specific computer-related issues which can bear upon when these various dates are updated and recorded, including software and operating system types and versions and various software and other user settings", also presented a limitation to the utility of the properties on which the applicants relied. In part, this point, and the evidence upon which it was based, were no more than another way of expressing the second point. Otherwise, the respondents here made reference to the report of Mr Macaulay. In what I say below on this subject, I have filtered out references to file system metadata.
215 With respect to application metadata, Mr Macaulay said:
Application metadata fields and how they are updated can change based on the version of the application being operated by the user. In my experience applications like Microsoft Word have treated application metadata fields such as created and last modified date with reasonable consistency over a number versions. However, some level of testing would be required to confirm exactly how these fields are updated across different versions.
My comment on this evidence would be that the circumstance that Microsoft Word treated application metadata fields such as created and last modified date with reasonable consistency over a number versions will be sufficient for the applicants' present purposes.
216 The respondents next relied on Mr Macaulay's opinion that "the behaviour, or availability, of application metadata, system metadata, or some of the above listed artefacts, may change due to the usage of different versions of Microsoft Office or upgraded operating systems over time." I shall not burden these reasons with an explanation of the "artefacts" here referred to, it being sufficient to say that this opinion was proffered as one of a number of reasons why the possibility of identifying the nature of modifications made to a document by an analysis of the original computer hard drives upon which the document was created, modified etc would be "remote" in the circumstances of the present case. That opinion was expressed in an interlocutory environment where the applicants were seeking to secure access to such hard drives after the computers with which they had originally been associated had been disposed of. These sorts of issues, and correspondingly Mr Macaulay's evidence about them, did not ultimately bear upon the utility of the document properties upon which the applicants relied at trial.
217 Otherwise, the sections of Mr Macaulay's report relied on by the respondents identified a number of matters that might affect application metadata, but, save to refer to them in a footnote to their written submission, counsel for the respondents did not engage with the practical question whether the electronic properties of the files with which the applicants' case is concerned were in fact so affected.
218 The respondents' fourth point was that "the assortment of various user related functions which can influence how and when these various dates are updated and recorded, but which do not equate with what the applicants seek to prove in each respect (for example, the "modification date" does not mean modified)" also presented a limitation to the utility of the properties on which the applicants relied. This point is valid so far as it goes, and, to take the situation which the respondents offered as the exemplar, the applicants did, as will already be apparent, accept that the recorded modification time and date for a particular document meant no more than that the document had been, at that time and on that date, opened, saved and closed at that time and on that date.
219 The respondents' fifth point was what they described as "[b]y far the most fundamental difficulty in the way of accepting the Applicants' contentions". The respondents submitted that those contentions were highly selective and ignored difficulties or inconsistencies in the recorded data themselves. They accused the applicants of asking the court "to accept some properties which suit their case, whilst ignoring those properties which do not". They pointed to three examples of this pattern of forensic behaviour on the part of the applicants which, they submitted, would "suffice". Those three examples related to the date upon which the appointment letter for each of Ms Borova, Ms Cansiz and Ms Alshakshir was "last printed".
220 The last print date for Ms Borova's appointment letter was 6 November 2009, the last print date for Ms Cansiz's appointment letter was 17 September 2010, and the last print date for Ms Alshakshir's appointment letter was 8 October 2009. In each case, the properties indicated that the document was opened and saved on 23 November 2012. It will be apparent from the list of Ms El-Leissy's apparent activities set out in para 203 above that, aside from one of Ms Ahmed's two letters, Ms Borova, Ms Cansiz and Ms Alshakshir were the only teachers whose files are recorded as having been opened and saved, but not printed, on that occasion. They are not examples of some broader malaise: they are exceptions to what otherwise appears to have been a fairly consistent pattern of activity on the part of Ms El-Leissy. If it be the fact that there is no proof that she did print these three documents on that day, this allegation by the applicants will, to that extent, fail. But I would not be disposed to treat such an outcome as destructive of the whole of the applicants' inferential case.
221 The applicants sought to deal with the problem created for them by the absence of any record of these three appointment letters having been printed on 23 November 2012 by referring to the evidence of the experts of situations in which a document might in fact be printed, but without the "last printed" date in the application metadata being updated. In their concurrent evidence session, Mr Macaulay said:
Because you have got the ability to be able to go from the file system, right click on it, and go print from there. Now, in some occasions, it doesn't open up the application, but it sends it to the [printer] without the application knowing about that print, printing happening, and therefore if the application doesn't know about it, it doesn't know to update it in the application metadata.
Mr McLeish agreed.
222 As the respondents pointed out, that was not an ideal evidentiary basis for a submission on the part of the applicants that these three appointment letters were printed on 23 November 2012. But it shows that they might have been, without the last print date in the application metadata being updated. The applicants' proposition also involves a scenario whereby Ms El-Leissy employed a protocol for printing these three documents which differed from that which she employed in relation to the others: that, on 23 November 2012, she did in fact open each of these files, modify it (ie by inserting "Full time" as the tenure), save it, close it, and only then print it from the file system.
223 Notwithstanding these reservations, I accept the applicants' submission that the experts' evidence demonstrates that the statement of a "last printed" date on the application metadata for a particular file does not exclude the prospect of the file having been printed more recently. If there is other evidence from which it should be inferred that a file was printed more recently, the "last printed" date should not stand in the way of the court accepting that evidence. In the present case, 6 November 2009 cannot have been the last date upon which Ms Borova's appointment letter was printed. She was not working for the respondent at that time. Apart from some casual relief teaching which she did for the respondent in 2010, she did not work for it until the 2011 school year, signing her appointment letter on 21 September 2010. Even if the file used for her appointment letter was a modification of a file previously used in respect of another teacher - and thus may have been printed on 6 November 2009 - on no view could that have been the last date upon which it was printed.
224 As noted earlier, Ms Cansiz signed her appointment letter on 22 November 2010. It is conceivable that the paper artefact which ultimately constituted the first two pages of that letter had been printed some weeks before - on 17 September 2010. Of the three, the last printed date shown in respect of Ms Alshakshir is the most credible as a date on which the document was printed - 8 October 2009 for a document which was signed by her on 19 October 2009.
225 As against these oddities, one thing cannot be disputed: the first page (at least) of the respondent's file copy of the appointment letter for each of Ms Borova and Ms Cansiz was printed subsequent to the time when each was first engaged by the respondent. It is known that, at some point before 27 November 2012, the tenure of "replacement" was altered to the tenure of "Full time". The only real issue confronting the court is when that replacement was made.
226 As against the position just discussed in relation to Ms Borova and Ms Cansiz, there was no suggestion in the expert evidence that the last print date could change without the document having been printed at all on that date. That is to say, we can be confident that the appointment letters for Ms Onder and Ms Sheehan were printed on 23 November 2012, at the times correspondingly set out in para 203 above.
227 It is now necessary to consider the evidence called by the respondent on the subject of the events of 23 November 2012, specifically that of Mr Salman and Ms El-Leissy. Ms El-Leissy was Mr Salman's personal assistant, as well as being part of the respondent's personnel department. It was her responsibility to generate and to print the appointment letter in respect of any new teacher to be taken on to the payroll. On her computer, Ms El-Leissy had a blank pro-forma employment document that she used for this purpose. On the employment of a new teacher, Ms El-Leissy would open the pro-forma document, fill in the details that were specific to the teacher, and save it with his or her name. The document would be printed, with the front page being on the respondent's letterhead, and the second and third pages being on plain paper. All being correct, Mr Salman would sign the second page in the space provided, and Ms El-Leissy would then photocopy the resulting three-page document, so that when the new teacher signed the third page, there would be an original (the one which Mr Salman had signed) and a copy.
228 Ms El-Leissy also prepared Mr Salman's reports to the periodical meetings of the respondent's Board, and the minutes of the Board meetings. The minutes would be taken by someone in the meeting, usually Ms Saleh, and then provided to her (Ms El-Leissy) afterwards. She would then prepare the minutes in electronic form, either on the morning after the Board meeting concerned, or at any time over (approximately) the following fortnight. Leave applications, appointment letters, extension letters, confirmation letters and the like would be prepared by Ms El-Leissy as required. She would print them and leave them for Mr Salman to sign.
229 In her evidence, Ms El-Leissy said that she did not know "the circumstances" of all of the documents that she created. In most cases, she had no idea of the circumstances, "and I essentially do what I am told to do" (as she put it in her first affidavit). Either that, or she knew what to do "from minutes, etc". In her affidavit, Ms El-Leissy said that she had never "intentionally falsified any document", that she had never "been asked to falsify any document", that she had never "heard anyone ever suggesting that documents should be falsified", and that she had never "seen any documents being falsified or documents that [she] believed had been falsified". She added that she had never been asked by Mr Salman to create or vary a document, whether it be a teacher contract or other piece of correspondence, in circumstances where she was suspicious about Mr Salman's motivations, or the authenticity or legitimacy of the document.
230 Ms El-Leissy was, however, aware of the practice to which I have referred in para 185 above. Under cross-examination, Ms El-Leissy gave examples of situations in which the front page of an appointment letter might be replaced. One was that of a replacement teacher who became pregnant: she was given permanent employment so she would qualify for maternity leave. Another example would be where a teacher needed leave to travel overseas for family reasons - there too he or she might be given permanent employment to qualify for that leave. Or the front page of a teacher's contract might be replaced to record a change in his or her personal details - such as a change of name when a female teacher became married, a change of address, or where the original details contained a spelling mistake - but only then, as I understood Ms El-Leissy, when the change became necessary a short time after the teacher had commenced employment with the respondent.
231 Counsel for the applicants pressed Ms El-Leissy to quantify the extent to which she had been instructed to change the front page of a teacher's contract - and she made it clear that she would only ever do it on the instruction of Mr Salman - with particular reference to evidence given by her at an interlocutory stage in this proceeding that she did it only rarely, but she was unable to improve on that adverb. What is clear is that, if her evidence is to be believed, Ms El-Leissy had absolutely no recollection of any particular occasion upon which she replaced, or Mr Salman asked her to replace, the front page of any appointment letter.
232 Ms El-Leissy was cross-examined extensively about her activities on the morning of 23 November 2012. As will appear in what follows, her evidence involved both direct denials of having changed teachers' contracts to show their tenure as "Full time" rather than (as previously) "replacement" to a professed inability to recall what she was doing that morning at all.
233 Asked whether she was requested to do something about teachers' contracts on that morning, Ms El-Leissy's response was, "Not that I recall", and then, "Specifically, no." She agreed that, when a teacher who had been employed as a replacement teacher was offered ongoing employment, the practice that she adopted, most of the time, was to prepare a "change of status" notice and place that on the teacher's personnel file. Counsel put it to Ms El-Leissy that the electronic properties of Ms Oz's contract showed that it was last modified on 23 November 2012, and suggested that, if Ms Oz had been made an ongoing teacher at the Board meeting on 22 November 2012, all that she (Ms El-Leissy) would have had to do was to prepare a change of status notice. Ms El-Leissy's response was to ask counsel whether the file had been changed, or only "looked at and closed again". That response, I would have to say, demonstrated a curiously elevated appreciation of a certain technical matter that has become an issue in the case, coming as it did from someone who in other respects, protested her ignorance of the technicalities of computer applications. She then said that she could not understand the question. On the question being put again, Ms El-Leissy agreed that there would probably not have been a need, in the circumstances postulated, for her to access Ms Oz's contract on the computer, but added, "depending on the circumstances at the time, what had happened, I'm not sure." She could not think, "offhand", why there would have been a requirement for her to have accessed the electronic version of Ms Oz's contract.
234 Counsel asked much the same question in relation to Ms Chaarani's contract, and Ms El-Leissy replied, "There could be any number of reasons for me going into that they must - they're our staff and I could go in and check information and close it again and save it. But doesn't mean I modified or changed it. …. I'm saving it all the time. I always save my work after I open it." Pressed again on the reason why she did, as it was contended, access Ms Chaarani's contract, Ms El-Leissy responded, "I can't even remember that I went into the contract. Sorry - I don't recall that."
235 Asked the same question about having accessed Ms Daniel's contract on the morning of 23 November 2012, Ms El-Leissy said:
It's part of my job. I always go in and check on the staff, then whether they need, whether they're finished, they're completed their replacement period or for any number of reasons. Maybe any of the Academy heads would have asked me or the campus heads would ask information about the staff member. I will go in and I check it for them.
And Ms El-Leissy gave much the same response when asked about her having accessed the contracts of Ms Borova, Ms Cansiz, Ms Alshakshir, Ms Awari, Ms Onder and Ms Sheehan. She said it was "part of her job" to do these things.
236 When Ms El-Leissy was asked whether there was any other reason for her to have looked at the contracts in question, she said there was not, but added, "we usually do check them on a yearly basis to see who is being replaced according to the head of the campus and who's [sic] we're keeping." As to that justification, Ms El-Leissy was asked whether it was for the purpose of offering work for the next year, and she replied, "or just even for the information for them to be aware of it." This was the first time that Ms El-Leissy had mentioned such a justification, if justification it was, for her having accessed the contracts referred to by counsel on the morning of 23 November 2012.
237 Ms El-Leissy directly denied that Mr Salman had asked her to go into her computer and to change the front page of the contract of each of the teachers referred to by inserting "Full time" as her "tenure". She also denied that Mr Salman had asked her to remove from the personnel files the various letters which recorded the engagement of people as replacement teachers; or that she had, before Mr Matson and Mr Schmidt attended the secondary campus on 27 November 2012, gone through the personnel files to remove documents which recorded teachers' tenure as replacement, and substituted documents which recorded the tenure as full time. She also denied that someone other than Mr Salman had asked her to look at the contracts on her computer on 23 November 2012. She said that there could be "many, many reasons" why she might look at the contracts on her computer. Asked directly by the court whether she denied accessing these contracts on her computer that day, Ms El-Leissy said that she did not recall.
238 Counsel for the applicants also asked Ms El-Leissy whether, given that the respondent kept hard copies of teachers' contracts in its files, there was any reason for her to have printed Ms Oz's contract 8:03 am on 23 November 2012. Ms El-Leissy was at something of a loss to explain how that might have happened so early in the morning, given that her commencing time was 8 am. She said, "I find it a bit hard because by the time I get to my office, unlock my office, go in, turn the computer on and get the file out I think it would take me more than three minutes." But Ms El-Leissy confirmed that she had not given the password for her computer to anyone else.
239 Ms El-Leissy said that she could not recall whether there was any reason why she would print out Ms Chaarani's contract on 23 November 2013, adding that she could not remember doing it. When it was put to her that there was no reason, in the normal course of her work, for her to have printed out Ms Chaarani's contract early in the morning on 23 November, she said that she did not know, adding "unless somebody asked for it the night before." Nor could she recall printing out the contracts of a number of other teachers, specified to her by name, whose circumstances are relevant to the present discussion. Ms El-Leissy said that she could not "even recall that morning at all." But she denied having printed off some changes to these contracts, placed them into the hard copy files that she kept in her office and removed the documents in those folders that recorded the relevant appointments as "replacement".
240 Overall, I was not impressed with the way in which Ms El-Leissy handled the factual issues which directly involved her activities on 23 November 2012. I accept, of course, that events which may have appeared, at the time, to be the routine, mundane, stuff of someone's job may subsequently become controversial in serious litigation. It would be both unfair and unrealistic to expect the person concerned to have a sharp recollection of those events some years later. But Ms El-Leissy's evidence was, I would have to say, both in its content and in the manner of its giving, a deal more defensive than would be the evidence of an innocent who simply had no recollection of events. On any view, Ms El-Leissy was conscious of the issues in the case and of the fact that what she is alleged to have done on 23 November 2012 had the potential to lead to a very unsavoury outcome, both for the respondent and for Mr Salman. Her loyalty to him was palpable throughout. The objective record of what Ms El-Leissy did that morning was striking, and required a response from her more satisfactory than it got, which was, in effect, a shrug of the shoulders under cover of a generally-expressed inability to recall the occasion.
241 Turning to the evidence of Mr Salman, in his affidavits, the only thing he said about the events of 23 November 2012 was that he believed that a copy of the order made by FWA was sent by the applicant to the respondent on the morning of that day, and that that was when he became aware of the applicant's intended entry to the respondent's premises and inspection of documents. He was, however, asked about 23 November 2012 under cross-examination. When it was put to him that, on 23 November 2012, he had instructed Ms El-Leissy to access the respondent's electronic versions of the contracts of a number of teachers, including Ms Onder, he denied it, and continued:
We don't need do that, you see, because we in the process - all of them become ongoing, and we acknowledge clearly in my affidavit that we changed them into ongoing and we changed the first page of them to make it ongoing. So no need for us to fabricate or to change - or an instruction to change. No need to do that.
Mr Salman was asked whether he meant by this that the contract for Ms Awari - the particular teacher as to whose circumstances cross-examination was proceeding - was changed on 23 November 2012 to make her ongoing, Mr Salman's response was:
When she was, already through the process, changed to ongoing and endorsed by the Board, that is done by the office, yes. Can change that. They changed the front page. That's the practice we do.
242 This evidence on the part of Mr Salman is problematic. He referred to something that would be done as a matter of course by "the office". He did not suggest that it was he, personally, who had replaced the front page of any contract. Mr Boyaci denied having made any changes that would be relevant to the facts of this case. The only person who might have acted as Mr Salman suggested was done in the normal course was Ms El-Leissy. For her part, Ms El-Leissy made it clear in her evidence that she would never take it upon herself to act in this way: she would do so only if instructed by Mr Salman.
243 If Mr Salman's evidence, in his affidavit and under cross-examination as referred to above, is to be understood as proposing that what may, without instructions from him, have occurred on the morning of 23 November 2012 was the essentially innocent exercise of Ms El-Leissy adjusting the first page of various employment contracts to give effect to resolutions passed the previous evening by the Board, I must say that this understanding of things was not pressed by counsel for the respondents in their closing submissions. Furthermore, while such an understanding might have provided some explanation for Ms El-Leissy having accessed the contracts of some of the teachers with whom the applicants' case is concerned, as will become apparent that would not be so in the case of others.
244 The net result of the evidence of Mr Salman and Ms El-Leissy, referred to above, is this. Asked specifically about alterations made on 23 November 2012, Mr Salman said that he had not needed to instruct Ms El-Leissy to do that because she would have done it as part of a "process". In relation to Ms Awari's appointment letter, he again said that Ms El-Leissy was "already through the process". To the extent that this evidence amounted to a denial of anything, it involved layers of self-serving equivocation, I am bound to observe. Further, any such denial was limited to Mr Salman having specifically instructed Ms El-Leissy to access the electronic versions of the contracts of named teachers. For her part, ultimately Ms El-Leissy could say nothing more than that she could not recall the occasion, while denying having received an instruction from Mr Salman which she regarded as suspicious.
245 The allegations made by the applicants against Mr Salman are very serious ones. For that reason, I do not set aside his denials lightly. By the same token, however, I must recognise that, by reason of the nature of those allegations and of his position as a respondent in this case, Mr Salman had a strong incentive to resist the making of incriminating findings. Even making allowance for the fact that he must be a very busy man with onerous responsibilities, I am bound to say that there were many areas in which I found his evidence quite unsatisfactory. Rarely does a court encounter a significant witness with less familiarity with the detail of his own affidavit than has occurred here in the case of Mr Salman. What he said orally about the meaning of the endorsement of "Full time" on the appointment letters of teachers, ultimately disowned by his own counsel, was an egregious example of this. His inability, or refusal, to shed any light on what clearly appear to have been the activities of his own personal assistant early on the morning following his receipt of the first order made by FWA is a circumstance which reflects badly on his credibility. Whatever may have been the case with Ms El-Leissy, I cannot accept that, for Mr Salman, 22 and 23 November 2012 were just two ordinary, forgettable, days at the office.
246 One thing which characterised the evidence of both Mr Salman and Ms El-Leissy was their tendency to manoeuvre themselves out of personal involvement in a damning situation. That is, of course, commonly encountered in litigation in which it is apparent that something seriously irregular has occurred, the question then being who was responsible: it always seems to be someone else's department. The alterations which were undoubtedly made to various appointment letters were made in the course of the conduct of the respondent's business. It is both disappointing and unsatisfactory that no-one in the management or administration of the respondent was prepared to take responsibility for them, and that the applicant, a stranger to the events concerned, has been left to piece together the available fragments of evidence in contested litigation.
247 The electronic properties of the appointment letters for Ms Sheehan and Ms Onder provide evidence, sufficient for the purposes of a civil proceeding, that those letters were printed on the morning of 23 November 2012. That is not conclusive evidence, of course, but it is evidence which required a more focussed response from the respondents than was forthcoming. Further, it being established that, as recently as 14 November 2012, the respondents regarded those two teachers as engaged on a replacement basis, it is to be inferred that their appointment letters were altered between then and 27 November 2012. Within that period of about a fortnight, the respondents were unable to point to any occasion when the alterations were, or even might have been, made - unless, of course, they were made when, and in circumstances, alleged by the applicants.
248 Although the circumstances of Ms Sheehan and Ms Onder are on all fours, those of Ms Borova and Ms Cansiz involve points of differentiation which may be significant. As the respondents pointed out, the application metadata does not suggest that Ms Borova's appointment letter was printed on 23 November 2012. But it was accessed and saved, at least. This is consistent with, albeit not direct evidence of, Ms El-Leissy having modified the letter on that day. We may, however, say two things about this letter. First, it must have been "last printed" some time subsequent to the date stated in the metadata. Secondly, it was printed at least twice subsequent to that date: in its original form, as executed by Ms Borova, and in the form in which it was shown to Messrs Matson and Schmidt.
249 Although Ms Borova received a confirmation letter dated 14 November 2012, that she be offered an ongoing position was the subject neither of Mr Salman's report to the meeting of the Board held on 22 November 2012 nor of the minutes of that meeting. A Board resolution in November 2012, therefore, could not be the explanation for the replacement of the first page of Ms Borova's letter of appointment. But the apprehended visit of Messrs Matson and Schmidt could. In circumstances where the confirmation letter provides a solid basis to infer what was the view then taken by the respondent as to Ms Borova's tenure, that visit stands as the only rational basis for a statement on the respondent's file copy of her appointment letter that she was employed "Full time".
250 From the objective facts so far as they are known, and from the evidence given by Mr Salman, referred to above, it is both a short and logical step to infer that, when he prepared his report for the Board on 22 November 2012, the state of the respondent's records insofar as they related to the tenure of teachers was foremost in his mind. I do not suggest that his decisions to send confirmation letters to Ms Borova, Ms Sheehan and Ms Onder, and to send a Professional Class letter to Ms Cansiz, were influenced by events initiated by the applicant. As a matter of timing, they may have been, but that was not the applicants' case. But the background, and Mr Salman's evidence, provide ample support for the inference that he instructed Ms El-Leissy to alter the appointment letters of these teachers by recording their tenures as "Full time". To the extent that Mr Salman is to be understood as having denied that, I reject his denials. Further, I cannot accept Ms El-Leissy's evidence that she did not recall making these alterations.
251 It is possible that Ms El-Leissy received her instructions from Mr Salman not on the morning of 23 November 2012 but on the afternoon of 22 November. By then, Mr Salman had prepared his recommendations to the Board, and he would have expected them to be endorsed. That would also have explained what appeared, from the electronic properties of the appointment letters, to have been an uncommonly expeditious commencement of work on Ms El-Leissy's part on the morning of 23 November: having been given an important and substantial project by Mr Salman the previous day, and presumably having to fit that in with her other work, there is every reason why she would have wanted to make an early start.
252 It is not necessary that I make a detailed finding along the lines suggested in the previous paragraph, but the possibilities there rehearsed are to be taken into account in what must be the next step in the applicants' case in relation to these four teachers: that the timing of the alteration of the relevant appointment letters was substantially driven by the respondent's appreciation of the imminence of the inspection by Messrs Matson and Schmidt. Here I repeat what I mentioned earlier: once FWA had made its order on 22 November 2012, the respondent was exposed to the prospect of an inspection on no more than 24 hours' notice. The sense of Ms El-Leissy's evidence, referred to in para 228 above, was that, although she might type up the minutes of Board meetings on the day after the meeting, generally there was no urgency in such matters. By contrast, what was done on the morning of 23 November 2012 did have an air of urgency, or at least expedition, about it.
253 The difficulty confronting the respondents is that they did not run a positive evidentiary case which would have provided a benign explanation for what Ms El-Leissy did on 23 November 2012. In the light of all of the surrounding circumstances, it is just not credible that Ms El-Leissy has no recollection of the events in which she was so centrally involved. It is inevitable that a court exercising jurisdiction in civil litigation will fill such an evidentiary vacuum with a version of events which makes most sense in the light of all the evidence which has been called and which is to the disadvantage of the party responsible for the vacuum. It cannot, of course, be said that those involved on the respondents' side preferred the well of the court, but the unsatisfactory nature of the evidence given by Mr Salman and Ms El-Leissy - leaving it to the applicants to join the necessary dots - has produced, I would hold, a situation of a similar kind.
254 I find as a fact that, on the morning of 23 November 2012, Ms El-Leissy altered the first page of the appointment letter for each of Ms Borova, Ms Sheehan, Ms Onder and Ms Cansiz by inserting "Full time" as the relevant tenure, that she did it because she was instructed to do so by Mr Salman, and that he so instructed her so that the letter would give the impression, when Messrs Matson and Schmidt entered the respondent's premises and inspected the letter, that the teacher concerned was not employed on a fixed-term basis, and had not been so employed from the outset.
255 Dealing next with category (b) referred to in para 176 above, I commence with the circumstances of Ms Daniel. I have mentioned them already in paras 35 and 64-65 above. In her evidence, Ms Daniel did not produce the appointment letter which she signed on 8 November 2011, but she gave unchallenged evidence that that letter stated that her tenure was "as a replacement".
256 Once the air is cleared of the suggestion that Ms Daniel was initially appointed to an ongoing position, there was no other occasion, prior to 23 November 2012, proposed by the respondents as that upon which her appointment letter might have been altered to record her tenure as "Full time". The evidence given by Mr Salman on the subject in his affidavit of 4 April 2014 was to the effect that Ms Daniel occupied an ongoing position, and that the appointment letter inspected by Messrs Matson and Schmidt on 27 November 2012 uncontroversially reflected that circumstance. As stated earlier, however, under cross-examination Mr Salman readily accepted that Ms Daniel was employed on a replacement basis in 2012. Even the Board resolution of 22 November 2012 was that she be offered only an extension on her existing replacement contract for the following year.
257 To complete the evidentiary record, I note that, in May or June 2013, Ms Daniel received a subpoena asking for her employment documents. She looked for her contract, but she could not find it. So she asked Mr Salman for a copy of the contract. He gave her a document which appeared to be the contract that she had signed, and Mr Salman said that it was. Ms Daniel gave the contract to a lady working in the office at the primary campus, with a note attached to it, and asked the lady to send the document to the court. The text of the note was to the effect, "I asked the school for a copy of what has been requested, this is what they have provided me with, I asked Mr Salman if it was the contract I signed and he said it was but I have no way of verifying this." Ms Daniel was subsequently told by the applicants' solicitor (as was the fact) that the court had not received the contract.
258 In November 2014, Ms Daniel received a second subpoena to produce her employment documents. Again, she asked Mr Salman for a copy of her contract, but this time he showed her an email from the respondents' solicitors stating that it would not be appropriate for him to give her a copy of the contract at that stage. Subsequently, Ms Daniel found a copy of the contract that she had received from Mr Salman after the first subpoena, and sent that to the court. The first page stated her tenure as "Full time".
259 Having regard to the considerations which exercised my mind with respect to the teachers in category (a), I take the view that the applicants' case in relation to Ms Daniel is at least as strong as in the case of, for example, Ms Sheehan and Ms Onder. There is evidence, which I accept, that the Word file for Ms Daniel's appointment letter was accessed, printed and saved on the morning of 23 November 2012. There is nothing in the respondents' evidentiary case which provides any explanation for the circumstances and timing of the alteration of that letter alternative to that alleged by the applicants.
260 I would extend the findings I made in para 254 above to Ms Daniel's circumstances.
261 I have referred to the circumstances of Ms Awari at paras 33 and 54-61 above. I have found that she was in fact a replacement teacher, and there is nothing in the evidence to suggest that she had, at any time before the end of 2012, been offered an ongoing position, or had her status changed. However, she did not produce an appointment letter that specified her tenure as "replacement". There was some evidence-in-chief given by her that, "in the contract [she was] employed as a part-time teacher to replace another teacher …." However, the only appointment letter which the applicants placed into evidence through Ms Awari was the one which she returned in June 2013 in response to their subpoena. That corresponded with the letter inspected by Messrs Matson and Schmidt on 27 November 2012, in that it recorded Ms Awari's tenure as "Full time" and included a third page signed by her on 21 July 2011. In her evidence, Ms Awari said that she had been given that letter by the respondent after she had been offered an ongoing contract which, as noted earlier, was done on 14 November 2012. Although the form of Ms Awari's evidence was suboptimal, there was enough there to identify two important facts: first, that her initial contract stated that she was employed to replace another teacher, and secondly, that she did not receive her "Full time" letter until after she had received her confirmation letter. In neither respect was Ms Awari's evidence challenged under cross-examination.
262 In Mr Salman's affidavit of 4 April 2014, a view of Ms Awari's employment circumstances quite different from that which he later accepted in the witness box was proposed. He treated the appointment letter describing her tenure as "Full time" as accurate as at the date of her signature on the third page thereof: "At the commencement of the 2012 school year, it appears as though Ms Nour Awari was employed by the Academy at the primary school campus as a Primary Quran Kareem Teacher on a permanent part-time basis (0.8)." It became apparent during the course of Mr Salman's oral evidence that that was not his view of the matter at all.
263 Mr Salman had not previously seen Ms Awari's email of 26 November 2012. He did not believe that a confirmation letter had been sent to her in November 2012, although he added:
A bundle of documents of this type were prepared for a number of teachers, all dated in or around November 2012. Some of those were prepared, but never sent. Others were prepared and sent. It is possible that a letter was drawn up for Ms Awari, and sent to her before any apparent error was identified.
As it happens, that the basis of Ms Awari's employment should be altered from replacement to ongoing was not the subject of Mr Salman's report to the Board on 22 November 2012 or of any resolution of the Board on that occasion. That would have been consistent with Mr Salman's supposition that the letter of 14 November 2012 was sent to Ms Awari by mistake. But it would have been no less consistent with an understanding on Mr Salman's part that Ms Awari had always been employed on a replacement basis, and that no change to that situation was in contemplation for the start of 2013. That was certainly the understanding which Mr Salman accepted in his oral evidence in this case.
264 If ever a teacher was engaged on a replacement basis, it was Ms Awari. Any appointment letter that described her employment as "Full time" (in the sense used by the respondent in such letters) in July 2011 would have been conspicuously at odds with the contractual reality of the situation. Together with her evidence-in-chief to which I have referred, there is more than enough in the circumstances of her original engagement to warrant the inference, which I draw, that her appointment letter described her tenure as replacement. The letter provided to Messrs Matson and Schmidt on 27 November 2012 was not that letter. It had been altered to show her tenure as "Full time".
265 Let it be accepted, as Mr Salman proposed, that no change in the basis of Ms Awari's employment was intended for the start of 2013. There was, therefore, no obvious or natural reason for Ms El-Leissy to have accessed and printed the Word file for Ms Awari's appointment letter on the morning of 23 November 2012, which I find she did. No reason, that is, other than to give the impression to Messrs Matson and Schmidt, contrary to the truth of the matter, that Ms Awari was employed on an ongoing basis.
266 I would extend the findings I made in para 254 above to Ms Awari's circumstances.
267 I consider next Ms Oz. I have referred to the appointment letter which she signed on 2 November 2011 at para 34 above. The first page of that letter was on the respondent's new letterhead, bearing the new logo. What is significant in this part of my reasons is the difference between the version of the first page of Ms Oz's contract exhibited to Mr Salman's affidavit affirmed on 9 November 2012 in the Federal Magistrates Court and the version as produced to Mr Matson 18 days later. Each came from the records of the respondent. The first stated that Ms Oz's tenure was "replacement", while the second stated that it was "Full time".
268 Mr Salman's attempts to confront the issues so clearly presented by these facts were unconvincing at best. In his affidavit, he said that, at the commencement of the 2012 school year, it "appear[ed]" as though Ms Oz was employed "on a permanent full-time basis". He based that conclusion upon the consistency which existed between two versions of her appointment letter - one provided to Messrs Matson and Schmidt on 27 November 2012 and the other returned by Ms Oz on 21 May 2013 in compliance with the applicants' subpoena. Each recorded Ms Oz's status as "Full time". Referring to the evidence which he had given in the Federal Magistrates Court, he said that he had "stated that as far as [he] could recall, Ms Oz was to sign a replacement contract for Term 4 of 2011, and [he] annexed a copy of that contract, purportedly signed by Ms Oz …." In his affidavit in the present case, Mr Salman continued:
It is apparent from that affidavit, that at some stage, a contract for a replacement position for Term 4 of 2011, was drawn up for Ms Oz by Ms EI-Leissy. I do not know whether I signed this version of the contract. Given that the only contract returned under subpoena by Ms Oz was a permanent contract, I can only assume that the replacement contract was never presented to her for her signature. I do not know, however.
….
It is apparent that I cannot actually say what the position with respect to Ms Oz is, and therefore, cannot say whether my recollection as set out in [his affidavit in the Federal Magistrates Court] was inaccurate or not. I note that I had no direct recollection at the time of giving my evidence in Court, what the status of Ms Oz's employment was in late 2011…. My evidence was based entirely on the document I had annexed.
To describe this evidence as guesswork would be to flatter it. Mr Salman's surmise that the version of Ms Oz's appointment letter that was exhibited to his own affidavit in the Federal Magistrates Court might have been a draft that was never presented to her is nothing short of extraordinary: the third page of that letter, as so exhibited, was Ms Oz's signed acceptance.
269 In his affidavit in the present case, Mr Salman noted "for completeness" that his report, as Academy Head, to the meeting of the Board on 1 December 2011 recorded Ms Oz "as being appointed to an ongoing position in 2012". As in the case of Ms Daniel, that was wrong. The relevant item in the report went no further, under the heading "Staffing", than to note that four persons, including Ms Oz, "have been appointed for 2012" at the primary campus.
270 Ms Oz herself was overseas at the time of the trial and did not answer her subpoena. Her non-appearance cannot, in the circumstances, be held against the applicants. Absent her direct evidence, the applicants were unable positively to establish that she had never signed a contract describing her tenure as "Full time". That she ever did so, however, is highly improbable. It is apparent, even to the lay eye, that the third page of the appointment letter provided to the applicant's representatives on 27 November 2012 was the same third page as was part of the appointment letter which Ms Oz signed on 2 November 2011. That Ms Oz was recommended for ongoing appointment on 22 November 2012 raises the clearest of inferences that, until then, her tenure was "replacement" only. That it was is entirely consistent with Mr Salman's evidence in the Federal Magistrates Court.
271 Against the weight of this evidence, I put little store by the circumstance that, in May 2013, Ms Oz sent to the court, in response to the applicants' subpoena to produce, an appointment letter in the same form as had been produced to Messrs Matson and Schmidt about six months previously. At the same time as Ms Cansiz was in the room having a conversation with Mr Salman as recounted in para 182 above, Ms Oz was, according to Ms Cansiz's evidence which I accept, also present. Ms Cansiz was unable to recall whether Ms Oz had any paper with her, but there is enough here to provide cause for disquiet as to the circumstances in which Ms Oz's appointment letter found its way to the court. Under cross-examination, Mr Salman appeared to accept that he had seen Ms Oz at about the time in 2013 when some of the teachers, including her, were obliged to answer the applicants' subpoenas to produce. Asked whether he had given her a contract, his response was, "The same story again: if she was changed into ongoing by the Board, she gave me a contract as ongoing." What I think Mr Salman meant here, in the context of the cross-examination which was proceeding at that stage, was that he gave her a contract that was ongoing. In the absence of Ms Oz from the witness box, it is difficult to make firm findings about this episode but, in the light of the assessment which I have made of Mr Salman's credibility in other respects, and in the light of the evident transposition of Ms Cansiz's appointment letter which occurred at his instance, a real concern remains.
272 The conclusion is inescapable that, at some point in the 18-day period between the affirmation of Mr Salman's affidavit in the Federal Magistrates Court and the visit of Messrs Matson and Schmidt to the secondary campus on 27 November 2012, the first page of Ms Oz's appointment letter was altered. There is evidence, which I accept, that the Word file for Ms Oz's appointment letter was accessed and printed on the morning of 23 November 2012. The inference, which so clearly presents itself on the facts to which I have referred, that this was the occasion on which the letter was altered to record Ms Oz's tenure as "Full time", was not displaced by any evidence led, or by any submission made, on behalf of the respondents.
273 I would extend the findings I made in para 254 above to Ms Oz's circumstances.
274 I consider next Ms Ahmed, who also did not give evidence. I have referred to her circumstances at paras 37 and 69-70 above. As there mentioned, some confusion is created by what appears to have been the swapping of the third pages of her appointment letters for 2011 and 2012. The third page of the 2011 letter contained Ms Ahmed's acceptance dated 9 February 2012, while the third page of the 2012 letter contained her acceptance dated 27 January 2011. By way of an additional confusion, both letters are headed "SCHOOL YEAR 2011". The "tenure" recorded in the 2011 letter is "Part time", while that recorded in the 2012 letter is "Full time". Both of these letters, in the states just described, were on Ms Ahmed's personnel file when it was shown to Messrs Matson and Schmidt on 27 November 2012. Indeed, the copies exhibited to Mr Matson's affidavit were the only ones placed into evidence.
275 I do not think there could be any doubt but that the signature pages of these appointment letters were inadvertently swapped at some stage. It is apparent that the letter signed by Ms Ahmed on 27 January 2011 (for work which commenced on that day) described her tenure as "Part time" and her time fraction as "Part Time 0.6". That was for the 2011 school year. On 9 February 2012, she signed another appointment letter. It is the first page of this letter which is problematic. As placed into evidence, it described Ms Ahmed's tenure as "Full time" - a circumstance which, the applicants would say, was the result of Ms El-Leissy's intervention on 23 November 2012 - and the heading was, on any view, wrong.
276 In his main affidavit, Mr Salman said that, although he was unsure about it, it "appeared" as though Ms Ahmed "may have been in the same situation as Ms Borova, Ms Sheehan and Ms Onder", in that she was initially offered and signed a contract for a replacement position for 2011, and then subsequently had her status changed to permanent part time, with effect from the start of that school year. For that surmise, Mr Salman relied on a change of status notice dated 7 February 2011 that was indistinguishable from like notices held on the respondent's electronic records in relation to those other named teachers. As to that notice as such, there is nothing which I would wish to add to what I have said in relation to the teachers in category (a) in that regard. But Ms Ahmed was indeed one of the teachers covered by the Board resolution of 24 February 2011 - see para 186 above - where she was named "Hamed", her middle name. The absence from the evidence of any original letter describing her tenure as replacement, together with the absence of Ms Ahmed from the witness box, complicates the applicants' task to a degree, but there are other circumstances which make it most improbable that the first page of her appointment letter was changed to "Full time" in consequence of that resolution.
277 Unlike what is said to be the position with other teachers, Ms Ahmed's position is not, on any view, one in which the first page of the appointment letter was replaced and the old page discarded. Rather, a new appointment letter was executed by both parties, while the old one was retained. It is clear that that occurred in February 2012, not at any time that was proximate to the resolution of 24 February 2011. It is, of course, controversial what was shown as Ms Ahmed's tenure on the new letter, but at least this order of things excludes the prospect that the reference to "Full time" on the letter as inspected by Messrs Matson and Schmidt on 27 November 2012 was explicable by reference to the events of February 2011. Also, the evidence given by Mr Salman in the Federal Magistrates Court to which I have referred in para 69 above, makes it clear that, in September 2011, the respondent regarded Ms Ahmed as engaged on a replacement basis.
278 That leaves the question whether the new appointment letter executed in February 2012 provided that Ms Ahmed's tenure was "Full time". The unlikelihood of that prospect is indicated by Mr Salman's recommendation to the Board on 22 November 2012, and the Board's acceptance of that recommendation. As noted earlier, Mr Salman himself accepted that Ms Ahmed was employed on a replacement basis in 2012.
279 The table of times which I have set out in para 203 above indicates that, on the morning of 23 November 2012, Ms El-Leissy accessed two appointment letters in relation to Ms Ahmed, but printed only one of them. It is apparent from Mr McLeish's report that the one she printed had a creation date of 3 February 2012. That coincided, approximately but sufficiently for present purposes, with the execution of the letter of appointment which Ms Ahmed signed on 9 February 2012. I infer that Ms El-Leissy opened both files with a view to identifying the one that was to be printed.
280 The position reached, therefore, is this. The events of February 2011 do not explain the reference to Ms Ahmed's tenure as "Full time". In September 2011, the respondent regarded her as employed on a replacement basis. The parties executed a new appointment letter in February 2012, but then too, and for the whole of the 2012 school year, the respondent regarded her as employed on a replacement basis. The events of February 2012 do not, therefore, explain the reference to her tenure as "Full time". That reference does, however, make sense if understood prospectively in the light of the Board's resolution of 22 November 2012. But that resolution was to take effect from the commencement of the 2013 school year. There is evidence, which I accept, that Ms El-Leissy not only accessed but printed the appointment letter executed in February 2012 on 23 November 2012.
281 I find, on the probabilities, that it was on the latter occasion that the tenure noted on the front page of Ms Ahmed's appointment letter was changed to "Full time". There is a sense in which this might have been regarded as nothing more than a benign implementation of the resolution of the Board made the previous day. But the respondent did not admit that there had been a change on 23 November 2012 and seek to defend it along these lines. Further, in the way it was done, there was no suggestion that Ms Ahmed had just been the beneficiary of an alteration that would take effect from the commencement of the following year. Rather, the clear impression created was that she had been employed under an ongoing contract from the outset, or at least from February 2012. At the time, Mr Salman was, as I have noted above, keenly aware of the forthcoming visit of Messrs Matson and Schmidt, and of their interest in the tenure of teachers in 2012. That was the motivation, I would find, for the alteration made on 23 November 2012.
282 I would extend the findings I made in para 254 above to Ms Ahmed's circumstances.
283 Turning to Ms Chaarani, I have dealt with her circumstances in paras 36 and 66-68 above. On 27 November 2012, Messrs Matson and Schmidt were provided with a copy of the appointment letter which Ms Chaarani signed on 9 December 2011. It was on the respondent's new letterhead, bearing the new logo. By then, of course, it is uncontroversial that the respondent was using that letterhead and logo. However, as mentioned earlier, what is controversial is the statement in this letter that Ms Chaarani's tenure was "Full time". As Mr Salman now accepts, she was engaged as a replacement teacher. The only direct evidence on the subject of the tenure stated on the appointment letter which Ms Chaarani signed on 9 December 2011 was that of Ms Chaarani herself, given in chief. Asked whether she recalled what the letter she signed said on the subject of her tenure, she responded, "I remember it saying 'replacement'." Under cross-examination, she was not challenged, at least directly, on that evidence. I accept it.
284 A year later, the Board resolved to endorse Mr Salman's recommendation that Ms Chaarani be offered an extension on her replacement contract. Obedience to the resolution of the Board could not, therefore, stand as an explanation of the statement on the respondent's copy of Ms Chaarani's appointment letter that her tenure was "Full time". In all presently relevant respects, Ms Chaarani appears to be in the same situation as Ms Daniel. As in the case of Ms Daniel, her appointment letter was not only accessed but printed on the morning of 23 November 2012. Subject only to the matters dealt with in the next three paragraphs below, I would apply what I said in para 254 above to the circumstances of Ms Chaarani.
285 On 15 May 2013, the applicants caused a subpoena to be issued directed to Ms Chaarani. It required her to produce to the court documents which evidenced her employment tenure for the year 2012, including appointment offers and correspondence extending a replacement period or offering ongoing employment. As Ms Chaarani said in her evidence, she could not find the documents referred to in the subpoena, because she had moved houses. So she spoke to someone on the staff of the respondent and told him or her that she needed a copy of her contract because she had misplaced her own. In response to that, Mr Salman gave her a version of her appointment letter which showed her tenure as "Full time". She returned that to the court pursuant to the subpoena.
286 When Ms Chaarani was under cross-examination, she accepted that the handwriting on the third page of the appointment letter that she returned pursuant to subpoena differed (although not in content) from the handwriting on the third page of the same appointment letter which, according to Mr Matson's affidavit, had been provided to him and to Mr Schmidt on 27 November 2012. In closing submissions, it was put on behalf of the respondents that the copy returned pursuant to subpoena was, therefore, most unlikely to have been the photocopy provided to Ms Chaarani by Mr Salman. It was pointed out, correctly, that the copy that Ms Chaarani said she misplaced was one of the two co-executed originals, the other being retained in the records of the respondent. Had Mr Salman given Ms Chaarani a copy of the appointment letter to send to the court, the third page of it would have been identical with the version that was inspected by Messrs Matson and Schmidt. I can see the logic in all of this, but receiving a subpoena from the court would not have been an everyday event for Ms Chaarani. Her evidence that, having misplaced her version of her appointment letter, she obtained another copy from Mr Salman was clear and coherent. It was not contradicted by anything Mr Salman said in evidence. I accept what she said.
287 The significance of the matter just discussed, of course, is this. The fact that Ms Chaarani returned a version of her appointment letter that gave her tenure as "Full time" does not resolve adversely to the applicants the question whether, when it was executed on 9 December 2011 and thereafter until at least 23 November 2012, the letter was so endorsed.
288 I would extend the findings I made in para 254 above to Ms Chaarani's circumstances.
289 Dealing finally with category (c) referred to in para 177 above, I commence with Ms Alshakshir. I have touched upon her circumstances in para 38 above. She gave evidence that the appointment letter she signed on 19 October 2009 bore the original logo. She was shown the version of that letter provided to Messrs Matson and Schmidt on 27 November 2012, and said that the version she signed did not bear the new logo. The first time she had seen a version of the letter with the new logo was some time in 2012, when Mr Salman called her into his office and told her that, because the school had changed its logo, "they were giving the staff a contract with the new logo." The version with the new logo was the only one in evidence.
290 Although it described Ms Alshakshir's tenure as "Full time", the letter inspected by Messrs Matson and Schmidt opened with the following introduction (immediately after the greeting): "You are offered the following Replacement Appointment as per the conditions set out below:". Of that inconsistency, Mr Salman said, in his affidavit, that the respondent had at all times regarded Ms Alshakshir as "a permanent, ongoing employee". That aspect of his evidence was not challenged by the applicants in cross-examination. But Mr Salman's affidavit continued that the reference to "Replacement Appointment" appeared to have been an "administrative error". That was, I would hold, nothing more than surmise on Mr Salman's part. In the light of Ms Alshakshir's own evidence about the letter she originally signed, it is apparent that the front page of the letter was replaced at some stage. The inconsistency between this opening passage and the description of her tenure as "Full time" cannot, therefore, be resolved on the basis that the former amounted to an administrative error. Given the terms of that passage, and in the light of the respondent's practices disclosed in the evidence which relates to other teachers, I would hold it to be probable that Ms Alshakshir's original appointment letter described her tenure as "replacement".
291 But that is not sufficient to bring me to the same conclusions as I reached in relation to the teachers already dealt with in these reasons. A major difference in Ms Alshakshir's case is that it is not alleged that she was on a fixed-term engagement in 2012. There are no extension letters or confirmation letters which relate to her. She was not the subject of any recommendation to, or resolution of, the Board on 22 November 2012. It is true that the electronic properties of the Word file for her appointment letter disclose that the letter was accessed by Ms El-Leissy on 23 November 2012, and that might have been the occasion when the tenure entry was altered, but the circumstances generally are devoid of any indications that, prior to that day, the respondent regarded her employment as a fixed term one. Absent indications of that kind, and although the respondents said nothing on the subject, the evidentiary gap is just too wide to make the connection for which the applicants contend.
292 In the case of Ms Alshakshir, I am not satisfied that her appointment letter was altered by Ms El-Leissy on 23 November 2012.
293 I consider finally Ms Badawi. I have touched upon her circumstances in para 28 above. As exhibited to her affidavit, the appointment letters which she signed on 12 April 2010 and 18 June 2010 and the extension letter dated 20 October 2010 were all on the respondent's old letterhead, bearing the original logo. The confirmation letter of 4 November 2011, and subsequent correspondence, were on the new letterhead, bearing the new logo. As provided to Messrs Matson and Schmidt at the secondary campus on 17 December 2012, however, while the appointment letter of 12 April 2010 and the extension letter of 20 October 2010 were on the old letterhead, the appointment letter ostensibly signed by Ms Badawi on 18 June 2010 was on the new letterhead. The inference that, at some point, someone on the staff of the respondent had changed the first page of the letter is irresistible.
294 In his affidavit affirmed on 4 April 2014, Mr Salman referred to, and exhibited, his report, as Academy Head, to the Board meeting to be held on 20 April 2010. Under the agenda item headed "Staffing. (Board Endorsement)", it was noted that four teachers had been offered positions, one of whom was Ms Badawi. The relevant entry read as follows:
Haidi Badawi, Arabic Language Teacher, as from 17/5/10 (Ongoing)
Her present teaching aide replacement position to be offered to another applicant.
In the minutes of the relevant Board meeting as exhibited to that affidavit, it was reported that the Board approved the appointment of Ms Badawi in the following terms:
Haidi Badawi - Arabic Language Teacher as from 15/5/10.
To vacate her position as a replacement teacher aide.
The absence of the parenthetical reference to Ms Badawi's tenure in her new position should be noted.
295 During the course of discovery for this proceeding, however, it transpired that there was, in the respondent's possession, another version of the minutes of the Board meeting on 20 April 2010. In that version, there was no reference to any teachers having been offered positions. This was the version that had been distributed to Board members by Ms El-Leissy as an attachment to her email of 11 May 2010. Under cross-examination, Mr Salman accepted that the minutes had been changed at some point by the insertion of the item relating to the appointment of teachers, including Ms Badawi. He treated it as the uncontroversial correction of minutes which had originally omitted an item of importance, but he made it clear that he had absolutely no recollection of the events concerned. Neither did Ms El-Leissy, who said under cross-examination, "I could have sent them and then realised there was a mistake in them, so I've changed them very quickly." That was, I would have to say, a matter of rationalisation, rather than of recollection, on Ms El-Leissy's part. So to observe is not necessarily to criticise her: had the distribution of replacement minutes to correct an omission from the minutes as originally distributed been benign as the respondents contended, Ms El-Leissy need not have had any recollection of it five years later, particularly if, as she said in her evidence, corrections of that kind did happen from time to time. But the fact remains that the respondents were unable to point to any objective evidence - nor even the actual recollection of any witness - which would place a time on when the replacement was made.
296 Noting the differences between the version of the appointment letter signed by Ms Badawi on 18 June 2010 returned by her under subpoena - which was the same as that exhibited to her affidavit, as referred to above - and the version of the same letter provided to Messrs Matson and Schmidt on 17 December 2012 - which was the same as that held on Ms Badawi's personnel file on that date - Mr Salman said that those differences "may be explainable" by a change of status notice held by the respondent only electronically (and therefore never on that file) in the following terms:
Mrs Badawi
As there is a Full time vacancy for Arabic Language Position, and as you are a qualified registered teacher with VIT, you are advised that the following change(s) in your classification has been made
CURRENT CLASS: Arabic Language Teacher Aide (Replacement)
NEW STATUS: LOTE Arabic Language Teacher
EFFECTIVE FROM: 17/5/2010
SALARY ADJUSTMENT: $53,000 Per Annum ($1,015.71 Per Week)
OTHER DETAILS:
• Your position has become an ongoing position as from the above date
• All conditions of the "Appointment Notice" of 17/5/2010 still apply, except for the changes stated above .
• Your new salary is effective as from 17/05/2010
As with other such ostensible notices placed into evidence by the respondents, the legitimacy of this change of status notice was strenuously contested by the applicants.
297 I do not accept Mr Salman's surmise that this notice explained the difference between the letter as signed by Ms Badawi on 18 June 2010 and the letter produced to Messrs Matson and Schmidt on 17 December 2012. There is no suggestion that the notice ever had a reality outside the electronic media on which it was stored. To the extent that it had a date at all, that was approximately co-extensive with the production of the appointment letter itself, in which it was stated unambiguously that Ms Badawi's engagement was by way of replacement. At the end of that year, she received an extension letter only, and this was followed by a confirmation letter dated 4 November 2011. These facts are consistent only with the conclusion, which I reach, that the appointment letter which she signed on 18 June 2010 identified her tenure as replacement at least until the end of 2011.
298 Moving forward from there, it seems clear that, as a matter of contract, Ms Badawi was engaged on an ongoing basis from the start of the 2012 year. Although not directly relevant to the matter of tenure, the contemporaneous receipt by her of a Professional Class letter was consistent with that. But there is no suggestion that her appointment letter was altered to reflect these changes - as it need not have been and, on one view, it ought not to have been. It was not until 23 November 2012 that the evidence provides any basis for the supposition that that letter was altered, and then the evidence is clear. Whatever reservations the respondents might have expressed as to the use to which the electronic properties of various appointment letters might be put, the properties which related to Ms Badawi's admit of no debate: the document was created on 18 June 2010 and last modified (ie the file was saved) and printed on 23 November 2012.
299 I am satisfied that, on 23 November 2012, Ms El-Leissy accessed the file for Ms Badawi's appointment letter, altered it to state that Ms Badawi's tenure was "Full time", and printed the resulting document. In so proceeding, Ms El-Leissy was not causing the document to misrepresent the nature of Ms Badawi's employment in 2012, but she was causing the document to state, contrary to the fact, that Ms Badawi's employment had been "Full time" from the outset. Absent the apprehended visit of Messrs Matson and Schmidt, there is nothing in the evidence that would suggest any reason for Mr Salman to instruct Ms El-Leissy to make this alteration. Ms Badawi had been uncontroversially an ongoing employee for the previous year, and was about to be elevated to the Advanced Professional Class. That Mr Salman would take it upon himself to instruct Ms El-Leissy - and the latter made it quite clear that she would make these sort of changes only when instructed by the former - to alter Ms Badawi's appointment letter at this time strikes me as particularly odd, unless, of course, the circumstances are understood in the context of the imminent arrival of the applicant's permit-holders.
300 Although Ms Badawi's circumstances differ in a number of respects from those of other teachers mentioned in these reasons, ultimately I am satisfied that the applicants have made out their factual case in respect of her. I would extend the findings I made in para 254 above to her circumstances.