FEDERAL COURT OF AUSTRALIA
Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 140
DATE OF ORDER: | 25 February 2016 |
THE COURT ORDERS THAT:
1. The proceeding be listed at 9:30 am on 4 March 2016 to receive the parties’ submissions on the form of the orders appropriate to give effect to the reasons of the court published this day.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
INTRODUCTION
1 In this proceeding the applicants, Independent Education Union of Australia (“the applicant”), an organisation registered pursuant to the provisions of the Fair Work (Registered Organisations) Act 2009 (Cth), and Georgia Butters-Cain allege that the first respondent, Australian International Academy of Education Inc. (“the respondent”), contravened –
s 45 of the Fair Work Act 2009 (Cth) (“the FW Act”) by contravening cll 10.2 and 10.6 of the Educational Services (Teachers) Award 2010 (“the award”) in 2012;
s 482(3) of the FW Act on two occasions in November and December 2012; and
s 502(1) of the FW Act on two occasions in November and December 2012.
The applicants also allege that the second respondent, Salah Hamed Salman, and the third respondent, Abdul Karim Galea, contravened s 502(1) of the FW Act on 17 December 2012.
2 The respondent is an association incorporated pursuant to the Associations Incorporation Reform Act 2012 (Vic). It operates a school in Coburg, with a secondary campus at 56 Bakers Road, North Coburg, (“the secondary campus”) and a primary campus at 653 Sydney Road, Coburg (“the primary campus”). Mr Salman (the second respondent) is the Academy Head and Director General, the secretary of the Academy Board (“the Board”), and the secretary and trustee of the Board of Trustees, of the respondent. He is responsible for the operation of the respondent. It is he who makes decisions on whether to offer employment to someone, and on the terms on which employment is offered. Until he recently retired, Mr Galea (the third respondent) was employed by the respondent as Head of the secondary campus and was a member of the Board.
3 In respect of the 2011 and 2012 school years, Ms Butters-Cain (the second applicant) was employed by the respondent as a teacher. She worked as a “primary generalist” teacher at the primary campus.
4 There are three broad areas of controversy in this proceeding. The first arises under cl 10.2 of the award, and involves the question whether the letters of appointment provided to certain teachers by the respondent contained the particulars required by that clause. The second arises under cl 10.6 of the award, and involves the question whether, in the 2012 school year, the respondent employed more teachers on a “fixed-term” basis than that clause allowed. The third arises under Pt 3-4 of the FW Act, and involves the questions whether the respondent contravened requirements made by officers of the applicant under s 482(1)(c) of the FW Act when they entered the secondary campus to inspect certain records and whether the respondent, Mr Salman and Mr Galea intentionally hindered or obstructed those officers in the exercise of the rights given to them under that Part.
THE PROVISIONS UNDER WHICH THE APPLICANTS PROCEED
5 Clause 10 of the award is headed, “Types of employment” and, to the extent presently relevant, provides as follows:
10.1 Employees under this award will be employed in one of the following categories:
(a) full-time employment;
(b) part-time employment;
(c) casual employment; or
(d) fixed term employment.
10.2 Terms of engagement
(a) On appointment, the employer will provide the employee (other than a casual employee) with a letter of appointment stating the classification and rate of salary applicable on commencement, the employee’s face-to-face teaching load and details of their extra curricular commitment.
(b) In the case of a part-time employee, the letter of appointment will include the employee’s teaching load expressed as a percentage of a full-time load in the school and that their extra curricular commitment will generally be, on balance, in the same proportion to their teaching load as that of a full-time teacher.
(c) Where the employer engages the employee on a fixed term basis, the letter of appointment will inform the employee of the reason the employment is fixed term, the date of commencement and the period of the employment.
10.3 Full-time employment
A full-time employee is an employee engaged to work an average of 38 ordinary hours per week.
10.4 Part-time employment
(a) A part-time employee is an employee who is engaged to work on a regular basis for less than, but not more than 90% of, the hours of a full-time employee in the school, children’s service or early childhood education service. If the hours of a part-time employee rise above 90%, the employee will be considered to be full-time
….
10.5 Casual employment
….
10.6 Fixed term employment
An employee may be employed for a fixed period of time for a period of at least four weeks but no more than 12 months on either a full-time or part-time basis to:
(a) undertake a specified project for which funding has been made available;
(b) undertake a specified task which has a limited period of operation; or
(c) replace an employee who is on leave, performing other duties temporarily or whose employment has terminated after the commencement of the school year. Provided that where the replacement arrangement extends beyond 12 months, the fixed term employment may be extended for up to a further 12 months.
6 Turning to the relevant provisions of the FW Act itself, s 45 is the standard prohibition on the contravention of a term of a modern award, which the award is. Nothing further needs to be said about that provision.
7 Insofar as provisions of the legislation are presently contentious, those provisions are to be found in Pt 3-4 of the FW Act. At the times that were relevant, s 481 provided as follows:
(1) A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation:
(a) whose industrial interests the organisation is entitled to represent; and
(b) who performs work on the premises.
(2) The fair work instrument must apply or have applied to the member.
(3) The permit holder must reasonably suspect that the contravention has occurred, or is occurring. The burden of proving that the suspicion is reasonable lies on the person asserting that fact.
8 The presently relevant provisions of s 482 were the following:
(1) While on the premises, the permit holder may do the following:
…
(c) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non‑member record or document) that is directly relevant to the suspected contravention and that:
(i) is kept on the premises; or
(ii) is accessible from a computer that is kept on the premises.
…
(2A) A non-member record or document is a record or document that:
(a) relates to the employment of a person who is not a member of the permit holder’s organisation; and
(b) does not also substantially relate to the employment of a person who is a member of the permit holder’s organisation;
but does not include a record or document that relates only to a person or persons who are not members of the permit holder’s organisation if the person or persons have consented in writing to the record or document being inspected or copied by the permit holder.
…
(3) An occupier or affected employer must not contravene a requirement under paragraph (1)(c).
9 The presently relevant provisions of s 483AA were the following:
(1) The permit holder may apply to FWA for an order allowing the permit holder to do either or both of the following:
(a) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, specified non‑member records or documents (or parts of such records or documents) under paragraph 482(1)(c);
(b) require an affected employer to produce, or provide access to, specified non‑member records or documents (or parts of such records or documents) under subsection 483(1).
(2) FWA may make the order if it is satisfied that the order is necessary to investigate the suspected contravention. Before doing so, FWA must have regard to any conditions imposed on the permit holder’s entry permit.
(3) If FWA makes the order, this Subdivision has effect accordingly.
…
In this section, “FWA” was Fair Work Australia (“FWA”).
10 The scheme of these provisions was that, subject to compliance with the requirements of Subdiv C, a permit-holder had a right of entry to premises under s 481 and could exercise the rights given by s 482. It was not necessary for him or her to secure any kind of ad hoc authority to proceed in this way. But those rights were confined to purposes, inquiries and requirements that related to members of the permit-holder’s organisation. The right to inspect documents, for example, given by s 482(1)(c), did not extend to a “non-member record or document”, a term defined in s 482(2A). If the permit-holder desired to inspect documents or records that related to employees who were not members of his or her organisation, it was necessary to obtain an order from FWA in that behalf under s 483AA. Whether the making of such an order produced the result that the provisions of ss 481 and 482 applied to documents and records that related to non-members, as well as to members, of the permit-holder’s organisation is a matter to which I shall have to give consideration in due course.
11 Section 502 relevantly provided as follows:
(1) A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.
…
(3) Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.
THE RESPONDENT’S STANDARD EMPLOYMENT DOCUMENTATION
12 There are certain standard form documents which the respondent used at various stages in the employment of teachers. To a greater or lesser extent, they appeared regularly in the evidence in this case. Mr Salman’s personal assistant, Soraya El-Leissy, had precedents of them on the word processor on her computer, and used them as the occasion required. I shall commence by laying out the relevant terms of these documents.
13 The form used to offer employment to a teacher was a three-page letter, to which I shall hereafter refer as the “appointment letter”, and which commenced as follows:
APPOINTMENT OFFER
SCHOOL YEAR 20xx
FULL NAME:
ADDRESS:
Dear Ms …
You are offered the following … as per the conditions set out below:
[Identification of teaching position]
1. TENURE:
2. DATE OF COMMENCEMENT OF DUTY:
3. TIME FRACTION (FULL TIME / PART TIME):
The “tenure” section of the appointment letter lies at the centre of the applicants’ case under ss 482(1)(c) and 502(1) of the FW Act.
14 The appointment letter contained five further items (numbered 4-8) setting out matters which were specific to the individual being appointed, namely, working hours, salary, allowance, classification/status and leave entitlement. The next section of the letter contained what were described as “General Conditions”, and applied to all teachers – that is to say, they did not vary as between the appointment offers made to different individuals. Then the letter contained what were described as “Specific Conditions”, but, so far as appears in the evidence, they too were generic in the sense that they applied to all teachers appointed in a particular capacity (eg classroom teacher). None of the matters covered in this paragraph of my reasons was controversial in the present case.
15 After the setting out of the specific conditions in the appointment letter, there was the following instruction: “Appointees must sign the attached Statement”. Under that instruction, there was provision for the letter to be signed by Mr Salman. So far as appears in the evidence, all such letters were signed personally by him. This appeared at the foot of the second page of the letter.
16 The third page of the appointment letter was a pro-forma to be executed by the teacher being offered employment, as follows:
ACCEPTING AN EMPLOYMENT OFFER
I accept the offer for the above mentioned Position ……………..… on the terms and conditions set out above. I understand and accept that any breach of Terms or Conditions of this Contract could lead to the termination of my employment with the Academy.
Name: …………………………………..
Signature: ………………………….. Date: ………………………..
Witness’s Name: ……………………….
Witness’s Signature: ………………………….. Date: ……………………….
17 So far as the evidence discloses, the respondent’s practice with respect to the “tenure” item in the appointment letter was to use the word “replacement” as an indication that the teacher concerned was being employed for a fixed term under cl 10.1(d) of the award, often accompanied by some brief elaboration, such as a reference to the period of the engagement. In all of the instances in which teachers whose circumstances featured in the evidence were offered employment of this kind, it was until the expiration of the current, or, in the case of an offer made towards the end of the year, the following, school year.
18 As curious as it may seem in the light of the third item on the front page of the respondent’s standard-form appointment letter, and although the subject was not free of controversy in respects to which I shall turn, the respondent’s practice appears to have been to describe the “tenure” of a teacher employed on an ongoing basis as “Full time”. It was the use of this description for the tenure of a number of teachers on the copies of their appointment letters held on file by the respondent that led to the applicants’ case under Pt 3-4 of the FW Act.
19 At, or towards, the end of a period of replacement employment, one of three things might have occurred. First, the teacher might have been offered a further year of fixed-term, or “replacement”, employment. In such a case, the teacher would be sent a letter, to which I shall hereafter refer as the “extension letter”, in the following terms:
RE: EXTENDING THE REPLACEMENT PERIOD OF APPOINTMENT
I write this letter to inform you that there is a replacement vacancy available next year. As a result, your Replacement Period of appointment at the Academy will be extended until the end of 20xx School Year, on the same terms and conditions of your Appointment Notice. If you are entitled for an annual increment, your salary will be adjusted and the amended payment will be made into your account on the due date of your anniversary.
The replacement position will be reviewed before the end of the extended period and on the basis of the availability of positions, I shall advise you accordingly.
If you have different plans and you do not wish to continue with the Academy in 20xx, I request you to let me know as soon as possible.
Finally, I wish you a very successful and rewarding year at the Academy.
20 Secondly, the teacher might have been offered ongoing employment, that is to say, employment which was not for a fixed term. In such a case, the teacher would be sent a letter, to which I shall hereafter refer as the “confirmation letter”, in the following terms:
RE: COMPLETING THE REPLACEMENT PERIOD OF APPOINTMENT
I write this letter to inform you that your replacement period of appointment at the Academy will be completed by the end of 20xx School year.
On the basis of the evidence available to me to this date I shall recommend to the Campus Board to confirm your position and to offer you an ongoing employment as from the start of the 20xx school year.
If you have different plans and you do not intend to continue with Academy in 20xx, could you please let me know as soon as possible.
Finally, I would like to thank you for your dedicated services to the Academy and I wish you a challenging and rewarding year in 20xx.
21 Thirdly, the teacher might have been offered no further employment beyond the expiration of the current fixed term for which he or she was employed. In such a case, the teacher would be sent a letter, to which I shall hereafter refer as the “completion letter”, in the following terms:
Re: End of your Replacement Tenure
By the end of Term 4, 20xx, your replacement tenure will be completed.
However, if any suitable position for 20xx appears before the end of term 4 this year, the office will inform you of the available position for your consideration.
On behalf of the AIA family, I would like to thank you for your valuable services during the replacement period and I wish you the best of luck to find a suitable and rewarding position.
22 The evidence also suggests – again, controversially, in respects to which I shall turn – that the respondent used a form of notification described as a “Change of Status Notice”. The suggestion is that this form was used to notify a teacher that his or her “status” had been changed from “replacement” to “ongoing”. The pro-forma was in the following terms:
CHANGE OF STATUS NOTICE
FULL NAME:
ADDRESS:
Ms …
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: …
NEW STATUS: …
EFFECTIVE FROM:
SALARY ADJUSTMENT:
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 due course.
23 There was another form of appointment letter which appeared, or was referred to, in the evidence in relation to four of the teachers with whose circumstances the case is concerned, and I shall refer to it as a “Professional Class letter”. Mr Salman explained in his affidavit that the respondent had several promotional classes of appointment, namely, “Professional Class”, “Advanced Professional Class”, and “Advanced Professional Class A1”. The Professional Class letter commenced as follows:
APPOINTMENT OFFER
Professional Class
PC
20xx SCHOOL YEAR
FULL NAME: …
ADDRESS: …
Dear Ms …
I am pleased to inform you that the Academy Board has approved your promotion to the Prestigious Professional Class according to the conditions stated below:
What followed was a setting-out of the conditions which attached to such an appointment. At the foot of the second page of the letter, above the place for Mr Salman’s signature on behalf of the respondent, was an instruction to the appointee to sign the acceptance form which, as in the case of the appointment letter, was on the third page. By signing that acceptance, the appointee stated that he or she had “read the Promotion Offer made to [him or her] for the appointment to the Professional Class”, that he or she understood “all conditions stated in [the] offer and [was] aware of the requirements of the new Class”.
THE TEACHERS WITH WHOSE CIRCUMSTANCES THIS CASE IS CONCERNED
24 Under one or more of the award and statutory provisions under which the applicants proceed, there are a total of 14 teachers whose circumstances are contentious in the case. In this part of my reasons, I shall introduce those teachers, and lay out their employment histories, to the extent that they are uncontentious. It will be necessary to return to their circumstances when I reach that part of the case in which the applicants make allegations about them which are not accepted by the respondent.
25 Alison Burns, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year, in which it was stated that her tenure was “Replacement 2011 School Year”. She accepted the respondent’s offer by completing the third page of the letter on 19 November 2010. She received a further appointment letter in respect of 2012, in which it was stated that her tenure was “Replacement 2012 School Year”. She accepted that offer by completing the third page of the letter on 31 January 2012. On 22 October 2012 or thereabouts, she received a completion letter from the respondent.
26 Anastasia (or “Anna”) Milionis had been employed by the respondent in the past, but the events which are presently relevant commenced when she was re-employed to teach a prep class in term 4, 2011. She was told that the position was available because another teacher had resigned. On 13 October 2011, she signed the third page of an appointment letter in which it was stated that her tenure was “Replacement Term 4, 2011 School Year”. She was subsequently invited to continue as a prep teacher the following year. On 12 December 2011, she received a further appointment letter in which it was stated that her tenure was “Replacement 2012 School Year”. She accepted that offer by completing the third page of the letter on that day. At this point, there was some discussion about the salary for which this contract provided, and that may have explained the receipt by Ms Milionis, on 6 February 2012 or thereabouts, of an offer of an appointment (or promotion, a controversial issue to which I shall return) to the respondent’s Professional Class. She received a Professional Class letter, and signed her acceptance of the offer on that day. On 22 October 2012, Ms Milionis received an extension letter, but the extension offered to her was until June 2013 only. Taking the view that she was already employed on an ongoing basis by the respondent, she disputed its right to proceed in this way. That dispute had not been resolved by 31 October 2012, the date by which the respondent required Ms Milionis to accept the offer contained in the extension letter, and the offer lapsed. On 12 November 2012, Mr Salman wrote to Ms Milionis stating that the position upon which the offer was based had been offered to someone else. Ms Milionis was not, in the circumstances, employed beyond the end of the 2012 school year.
27 Ms Butters-Cain, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year, in which it was stated that her tenure was “Replacement 2011 School Year”. She accepted the respondent’s offer by completing the third page of the letter on 4 February 2011. She received an extension letter dated 4 November 2011 which related to the 2012 school year. On 22 October 2012 or thereabouts, she received a completion letter from the respondent.
28 Haidi Badawi did not give evidence (I was told that, rather than complying with the applicants’ subpoena, she went overseas), but an affidavit, redacted to remove prejudicial parts, sworn by her on 2 December 2014 was admitted into evidence. What follows is based on that and, at least in this paragraph, is established by photocopied documents which she exhibited to her affidavit or were otherwise uncontroversial. She initially worked for the respondent as a teacher aide, receiving an appointment letter for the 2010 school year, in which it was stated that her tenure was “Replacement for 2010”. She accepted the respondent’s offer by completing the third page of the letter on 12 April 2010. Her date of commencement of duty was the following day, 13 April 2010. On 18 May 2010, she commenced work as an Arabic teacher, the contract for which was not immediately attended to on account, she said, of Mr Salman’s temporary absence. The contractual position was formalised on 18 June 2010, when Ms Badawi received an appointment letter in respect of that position, under which her duty was to have commenced on 17 May 2010 and her tenure was said to be “Replacement till end of 2010 School Year”. She accepted that offer on the same day. She received an extension letter dated 20 October 2010 which related to the 2011 school year. She received a confirmation letter dated 4 November 2011, operative from the commencement of the 2012 school year. Very shortly thereafter, she received a Professional Class letter, and she accepted the offer set out in it on 7 December 2011. About a year later, she received a similar letter, this time offering her a position in the Advanced Professional Class, which she accepted on 18 December 2012.
29 Sumeyye Borova, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year, in which it was stated that her tenure was “Replacement 2011 School Year”. She accepted the respondent’s offer by completing the third page of the letter on 21 September 2010. She received an extension letter dated 4 November 2011 which related to the 2012 school year. She received a confirmation letter dated 14 November 2012, operative from the commencement of the 2013 school year.
30 Clair Sheehan, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year, in which it was stated that her tenure was “Replacement 2011 School Year”. She accepted the respondent’s offer by completing the third page of the letter on 6 December 2010. She received an extension letter dated 4 November 2011 which related to the 2012 school year. She received a confirmation letter dated 14 November 2012, operative from the commencement of the 2013 school year. In his report to the Board meeting held on 22 November 2012, Mr Salman recommended that Ms Sheehan be offered an ongoing position and, at the meeting, that recommendation was endorsed.
31 Derya Onder, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year, in which it was stated that her tenure was “Replacement 2011 School Year”. She accepted the respondent’s offer by completing the third page of the letter on 3 November 2010. She received an extension letter dated 4 November 2011 which related to the 2012 school year. In November 2012, she received an offer of ongoing employment from the respondent, but the offer itself could not be located, and was not placed into evidence by any party. Nonetheless, Ms Onder said, without objection or cross-examination on the point, that she was told by Ms Borova that she received the same letter, in which circumstances I am prepared to infer that this was a confirmation letter sent by the respondent to Ms Onder. In his report to the Board meeting held on 22 November 2012, Mr Salman recommended that Ms Onder be offered an ongoing position and, at the meeting, that recommendation was endorsed.
32 Filiz Cansiz, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year, in which it was stated that her tenure was “Replacement 2011 School Year”. She accepted the respondent’s offer by completing the third page of the letter on 22 November 2010. There is no further uncontroversial documentation as to her employment until her signed acceptance, on 18 November 2012, of an offer contained in a Professional Class letter from the respondent. When she gave evidence in this case on 15 September 2015, she remained in the respondent’s employ as a teacher at the primary campus.
33 Nour Awari, who worked for the respondent as a primary Quran Kareem teacher, received an appointment letter for the 2011 school year for employment, commencing only on 18 July 2011, on a time fraction of 0.8. She accepted the respondent’s offer by completing the third page of the letter on 21 July 2011. In February 2012, her time fraction was increased to a full-time load, and remained so for that year. She received a confirmation letter dated 14 November 2012, operative from the commencement of the 2013 school year. By email dated 26 November 2012, Ms Awari referred to that letter, which she described as “offering me an ongoing position in the Academy”, and accepted the offer contained in it.
34 Sarah Oz, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2011 school year for employment commencing only on 31 October 2011. She accepted the respondent’s offer by completing the third page of the letter on 2 November 2011. Ms Oz did not give evidence – I was told by counsel for the applicants that she was overseas at the time of the trial – but the form of this letter which was an exhibit to Mr Salman’s affidavit affirmed on 9 November 2012 in proceeding MLG 222/12 in the Federal Magistrates Court of Australia showed Ms Oz’s “tenure” as “Replacement Term 4, 2011 School Year”. In a report for a meeting of the Board of the respondent held on 22 November 2012, Mr Salman recommended that Ms Oz be offered an ongoing position. That recommendation was accepted.
35 Nicole Daniel, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2012 school year. She accepted the respondent’s offer by completing the third page of the letter on 8 November 2011. On Ms Daniel’s personnel file maintained by the respondent, there was a confirmation letter dated 22 October 2012, addressed to her and operative from the commencement of the 2013 school year. The respondent’s evidence is that this letter was not sent, and Ms Daniel did not give evidence that it was received. Indeed, she did give evidence that, at the end of 2013 or the start of 2014, she was offered “an ongoing contract”, which coincided with her promotion to the professional class. Consistently with that, in the report to the Board meeting on 22 November 2012 referred to in the previous paragraph, Ms Daniel was one of four teachers who, according to the report, were “offered extensions on their replacement contracts for 2013”.
36 Rehab Chaarani, who worked for the respondent as a primary generalist teacher, received an appointment letter for the 2012 school year. She accepted the respondent’s offer by completing the third page of the letter on 9 December 2011. There is a question, to which I shall return, whether Ms Chaarani received a confirmation letter dated 22 October 2012, addressed to her and operative from the commencement of the 2013 school year. What can be said, however, is that she was, along with Ms Daniel, one of the four teachers to be offered an extension in Mr Salman’s report to the Board of 22 November 2012.
37 Hanan Ahmed did not give evidence (she did not, I was told, attend court pursuant to the subpoena served on her). It is uncontroversial, however, that she commenced working for the respondent on 27 January 2011 as a part-time (0.6 fraction) teacher of Arabic and French. Although there is some confusion in the respondent’s documentary records in relation to Ms Ahmed (a matter to which I shall return), it seems tolerably clear that she signed an appointment letter on that day. In September 2011, Mr Salman approved some staffing adjustments that had the effect that Ms Ahmed’s time fraction moved from 0.6 to full time. Subject again to the documentary confusion referred to, Ms Ahmed received another appointment letter for a full-time position as an Arabic teacher commencing on 3 February 2012, and she signed the third page on 9 February 2012. In the report by Mr Salman, as Academy Head, to the respondent’s Board on 22 November 2012, it was recommended that Ms Ahmed be offered an ongoing position. At the meeting of the Board that day, that recommendation was endorsed.
38 Sawsan Alshakshir, who worked for the respondent as an Islamic studies and Arabic support teacher, received an appointment letter for the 2009 school year for employment, commencing only on 19 October 2009. She accepted the respondent’s offer by completing the third page of the letter on that date. She remains employed by the respondent (and has been so employed, full time, since October 2009), but no other documentation of present relevance was placed into evidence (nor, according to the unchallenged evidence of Mr Salman, was any such documentation to be found in Ms Alshakshir’s personnel file).
THE APPLICANTS’ CASE UNDER CL 10.2 OF THE AWARD
39 It is established on the pleadings that, at the commencement of the 2012 school year, Ms Burns, Ms Milionis and Ms Butters-Cain were employed at the primary campus on a fixed-term basis. The applicants contend that the respondent did not provide any of these teachers with a letter of appointment stating the reason for the fixed-term basis of her employment. They contend that, in each case, there was an appointment letter (complying to that extent with cl 10.2(a) of the award): indeed, they tie their case to the terms of the letters which they identify. But they say that none of the letters informed the employee concerned of the reason why her employment was on a fixed-term basis, in contravention of cl 10.2(c). In the case of the letter addressed to Ms Burns, the respondent says that it did state the reason why her employment was on a fixed-term basis. In the case of Ms Milionis and Ms Butters-Cain, the respondent’s position is that the letters identified by the applicants were not letters of appointment within the meaning of cl 10.2 at all.
40 Commencing with Ms Burns, the question is whether the words “Replacement 2012 School Year” (see para 25 above) stated “the reason the employment is fixed term” within the meaning of cl 10.2(c) of the award. The respondent contends that they did. The applicants contend that they did not, because they did not identify which of the circumstances specified in cl 10.6(c) was relevant. They say that Ms Burns ought to have been informed whether the employee whom she was replacing was on leave, was performing other duties temporarily or had had his or her employment terminated after the commencement of the school year. As I shall address presently, the applicants go further than this in the content that, they contend, should be read into the provision under consideration, but, in the case of Ms Burns, it is sufficient for them to submit that it was not enough for the respondent to have told her that the reason for her fixed-term employment was “replacement”.
41 Grammatically, the constructions of cl 10.2(c) proffered by the applicants and the respondent both make sense. That she was replacing another teacher – effectively what is conveyed by the shorthand term “replacement” – was the “reason” that Ms Burns was employed on a fixed term basis. Likewise, the situation of that other teacher – on leave etc – could also be regarded as such a “reason”. Neither party assisted the court with any evidence of the antecedents of this provision in the award, or of the facts and circumstances which surrounded its making. The court is thus confronted with the task of construction by reference only to the language, and apparent purposes, of the provision itself.
42 It was submitted on behalf of the applicants that the construction for which they contended served two purposes: first, to provide “an accountability measure” in relation to the lawfulness of the employment of a particular teacher on a fixed-term basis; and secondly, to enable such a teacher to evaluate whether he or she was likely to be re-employed at the expiration of the fixed term. I should say at once that I do not consider there to be anything in the second of these submissions. There is nothing in the terms of cl 10.2, either with or without some assistance from cl 10.6, to perceive a purpose of the kind suggested. It may be that a teacher employed on a fixed term might be interested to know whether another offer of employment is likely to be made, but a fixed-term appointment is just that. It would not, in my view, be permissible to see these provisions as having the secondary purpose of facilitating a teacher’s contemplation of some subsequent, different, engagement.
43 With respect to the first of the purposes contended for by the applicants, the submission goes a deal further than would be legitimate if the purpose of cl 10.2(c) were to reflect only the circumstance giving rise to the need for the employment of a replacement teacher within the categories in cl 10.6(c) of the award. It was submitted that, to comply with cl 10.2(c), the respondent had to specify also the facts and events which led to the other teacher being on leave, or performing other duties, for example. The reason or justification for the leave, or the nature of the other duties, would have to be specified. I accept the sense of perceiving in cl 10.2(c) a purpose at least somewhat along these lines, but, in relation to a provision which carries penal consequences if contravened, it would be doing more than construing the provision as such were the court to hold that it imposed obligations at that level of detail: it would, in effect, be adding content which the award-maker did not include.
44 The respondent concedes the existence of a relation between cl 10.2(c) and cl 10.6, but submits that being employed as a replacement teacher is, of itself, a sufficient statement of “reason” for the purposes of the former. That approach, in my view, places too much emphasis upon the internal layout of cl 10.6. In substance, if not in form, cl 10.6(c) identifies the reasons that would justify the employment of a replacement teacher on a fixed-term basis as threefold. That those reasons were grouped together in a single subclause was no more than the grammatical choice of the draftsman.
45 In my view, to have informed Ms Burns that the reason that she was employed on a fixed-term basis was “replacement” did not amount to compliance with cl 10.2(c) of the award. Under that provision, she was entitled to be told also whether her replacement status was by reason of an employee being on leave, an employee performing other duties temporarily or the employment of an employee having been terminated after the commencement of the school year. In this respect, the respondent did contravene cl 10.2(c).
46 With respect to Ms Milionis, it was submitted on behalf of the respondent that the respondent’s letter of 6 February 2012 (see para 26 above) was not a “letter of appointment” within the terms of cl 10.2(a) of the award and was not, therefore, subject to the requirements of cl 10.2(c). The applicants’ submission was that the letter was a letter of appointment because of its heading and because it provided the contractual basis for the balance of Ms Milionis’ employment with the respondent.
47 In favour of the respondent’s submission is the undoubted fact that this was a promotion rather than a new appointment off the street, as it were. Also, at the time when Ms Milionis accepted this offer, she and the respondent were contracted for the 2012 school year. On one view, therefore, the “fixed term” for which she was engaged did not depend on this letter. There were, however, terms in the letter that made it clear that this was a new contract in substance as well as form, albeit in place of the contract that had been entered into on 12 December 2011. One of the “conditions” set out in the letter was: “Appointment to PC is not an Award appointment, rather it is a special promotion by the Academy.” The salary package for which the letter provided was said to be “inclusive and no additional allowances will be given.” In my view, the contract amounted to an “appointment” within the terms of cl 10.2(a).
48 There was no suggestion on behalf of the respondent that the letter of 6 February 2012 complied with cl 10.2(c) of the award. There was, therefore, a contravention of that provision.
49 With respect to Ms Butters-Cain, it was submitted on behalf of the respondent that the respondent’s letter of 4 November 2011 (see para 27 above) was not an appointment, but an extension of the previous appointment. I do not accept that submission. Here the applicants’ case is stronger than it was in relation to Ms Milionis, in that Ms Butters-Cain was not already contracted for the 2012 school year. It is of the nature of a fixed term of employment that it comes to an end at the expiration of the term. Although described as an “extension”, what happened here was the re-appointment of Ms Butters-Cain to another, separate, term of employment. The letter of 4 November 2011 did, in my view, amount to an “appointment” within the terms of cl 10.2(a).
50 There was no suggestion on behalf of the respondent that the letter of 4 November 2011 complied with cl 10.2(c) of the award. There was, in the circumstances, a contravention of that provision.
51 It follows that I uphold the applicants’ case under cl 10.2(c) of the award in relation to the letters which the respondent sent to Ms Burns, Ms Milionis and Ms Butters-Cain. In each instance, there was a contravention of cl 10.2(c) of the award.
THE APPLICANTS’ CASE UNDER CL 10.6 OF THE AWARD
52 The approach which the applicants took to establishing that there had, in the 2012 school year, been contraventions of cl 10.6 of the award was to identify the teachers who were employed for fixed periods in that year, to concede the teachers known to them to have been on leave, and to contend that the excess of the former over the latter constituted the number of contraventions of the clause committed by the respondent. Broadly, the respondent was content to engage with the applicants at this level. That is to say, save with respect to Ms Awari, it made no attempt to match every fixed-term teacher with a specific instance of another teacher having been on leave or affected by one of the other circumstances mentioned in cl 10.6(c).
53 Taking this approach, the first task is to identify the teachers who, in 2012, were employed for fixed periods. At trial it was, and it remains, common ground that nine teachers – Ms Burns, Ms Milionis, Ms Butters-Cain, Zena Heblas, Iman Hafza, Ms Borova, Ms Sheehan, Ms Onder and Ms Cansiz – were so employed. The applicants allege that an additional five teachers – Ms Awari, Ms Oz, Ms Daniel, Ms Chaarani and Ms Ahmed – were also so employed. It is to the circumstances of the teachers in the latter group, therefore, that I must next turn.
54 I have summarised the circumstances of Ms Awari’s employment at para 33 above. In her oral evidence, Ms Awari said that she was originally employed as a part-time teacher to replace another part-time teacher who was absent on maternity leave. With respect to the period after February 2012, Ms Awari described her situation as “full-time within the replacement … category”. At some point in 2012, the teacher on maternity leave resigned. That led to the receipt by Ms Awari of the confirmation letter dated 14 November 2012.
55 If this were the extent of the evidence, I would find that Ms Awari was employed on a fixed-term basis in 2012. The respondent, however, relied on the terms of the appointment letter signed by Ms Awari on 21 July 2011 to which I have referred above. There Ms Awari’s “tenure” was recorded as “Full time”, notwithstanding that the letter also recorded her “time fraction” as “Part time 0.8”. In the most satisfactory form that the document was placed into evidence, it was exhibited to an affidavit affirmed by Mr Salman. With respect to that document, Mr Salman said that “full time” meant that the employee concerned was employed in an ongoing, as distinct from a “replacement”, capacity (I refer in more depth to this distinction later in these reasons). Giving primacy to the document of July 2011, the respondent submitted that the confirmation letter to Ms Awari of 14 November 2012, and her email of 26 November 2012 “could not be found to be anything other than mistakes or administrative errors”.
56 The respondent’s approach to the circumstances of Ms Awari is problematic in a number of respects. First, I refer to paras 264-266 below, where I find that the letter upon which the respondent relied to contend that Ms Awari was employed on an ongoing basis had been altered by Ms El-Leissy on 23 November 2012, and, on the matter of tenure, did not reflect the appointment letter that Ms Awari had signed.
57 Secondly, under cross-examination she was not challenged on any of the evidence she had given in chief: the cross-examination was limited to having her confirm that she commenced in July 2011 on a 0.8 fractional load and moved to a full-time load in February 2012, and that the three documents mentioned in her evidence (the document of July 2011, Mr Salman’s letter of 14 November 2012 and her email of 26 November 2012) had been in her possession and produced by her pursuant to subpoena. The respondent did not engage with Ms Awari’s evidence that she replaced a teacher absent on maternity leave. Neither was there any challenge to her evidence that she had received the confirmation letter dated 14 November 2012.
58 Thirdly, there was no evidence-in-chief on behalf of the respondent which might have disputed that evidence. Ms Awari was a specialist teacher at primary level. Her evidence that she replaced a teacher in that specialised area who took maternity leave in 2011 was very specific, and could readily have been disputed if it were without foundation. Had there never been such a teacher, or had the teacher in that area not taken maternity leave at the time in question, it would, I consider, have been a simple matter for the respondent to have led evidence to that effect from its records; or if, as in a number of other respects I have been invited by the respondent to find, its records were deficient, to have led evidence that that was the case.
59 Fourthly, Mr Salman’s Academy Head Report dated 24 July 2011, exhibited to his affidavit, listed Ms Awari as one of the “new replacement staff” who had recently been appointed.
60 Fifthly, the evidence given by Mr Salman under cross-examination effectively left no scope for the submission now made on behalf of the respondent. Shown his letter to Ms Awari dated 14 November 2012, he recognised his signature and said that it should be the case that the contents of the letter were true. He accepted that Ms Awari was employed in the 2012 year as a replacement teacher.
61 On the strength of the evidence, and considerations, to which I have referred, I reject the respondent’s contention that, in 2012, Ms Awari was employed on an ongoing basis.
62 I have summarised the circumstances of Ms Oz’s employment at para 34 above. In respects to which I shall return, there are questions about the authenticity of two versions of Ms Oz’s appointment letter signed on 2 November 2012, additional to that upon which my findings in para 34 were based, but it is sufficient for present purposes to say that I have no hesitation in making those findings. I need add only that, in para 26 of Mr Salman’s affidavit in the Federal Magistrates Court to which I have referred, he stated that Ms Oz had been employed as a replacement teacher. As mentioned, he exhibited a copy of the offer of employment which she had accepted. That offer stated that she was a replacement teacher. In submissions made on its behalf in this proceeding, the respondent said nothing about this affidavit, or exhibit. In my view, they provide quite unequivocal evidence that Ms Oz was, as at 9 November 2012, employed as a replacement – that is, as a fixed-term – teacher. Indeed, under cross-examination, Mr Salman accepted that she had been employed as a replacement teacher both for the remaining weeks of 2011 and for the 2012 school year.
63 What I have said will sustain the conclusion, which I draw, that Ms Oz was employed on a fixed-term basis in the 2012 school year.
64 I have summarised the circumstances of Ms Daniel’s employment at para 35 above. In her affidavit in this proceeding, she said that she had been “employed on a replacement basis for the 2012 school year.” In his oral evidence, Mr Salman confirmed the correctness of that statement. In his affidavit, Mr Salman said that his report, as Academy Head, to the meeting of the Board on 1 December 2011 “records that Ms Daniel was to be appointed as an ongoing employee from the commencement of the 2012 school year.” That was wrong. The relevant item in the report went no further, under the heading “Staffing”, than to note that four persons, including Ms Daniel, “have been appointed for 2012” at the primary campus. Indeed, Mr Salman’s report to the meeting of the Board on 23 February 2012 noted that Ms Daniel was one of the “new replacement staff members”. He accepted that the contract that Ms Daniel would have signed would have listed her tenure as “replacement”. With respect to the confirmation letter of 22 October 2012 to which I referred in para 35, the significance of it was not that it was sent or received, nor even that it provided the basis for a new contractual arrangement between the respondent and Ms Daniel, but that it contained an acknowledgement that Ms Daniel was, as she said in her evidence, employed on a replacement basis in 2012. From what appears in Mr Salman’s report to the Board meeting on 22 November 2012, it may be inferred that, although Mr Salman signed a letter on 22 October 2012 which, if sent, would have offered Ms Daniel ongoing employment, at some point over the following month or so he changed his mind and offered her only an extension on her replacement contract.
65 The evidence, and considerations, to which I have referred sustain the conclusion, which I draw, that Ms Daniel was employed on a fixed-term basis in 2012.
66 I have summarised the circumstances of Ms Chaarani’s employment at para 36 above. They have much in common with the circumstances of Ms Daniel. In her evidence-in-chief, Ms Chaarani said that she was engaged as a replacement teacher and that her original contract stated that her tenure was “replacement”. In his oral evidence, Mr Salman confirmed the correctness of these statements. His report, as Academy Head, to the meeting of the Board of the respondent on 23 February 2012 noted that Ms Chaarani was one of the “new replacement staff members”.
67 Notwithstanding that evidence of Ms Chaarani and Mr Salman, there was no appointment letter recording Ms Chaarani’s tenure as “replacement” in evidence. There were two versions which found their way into the evidence, and each recorded her tenure as “Full time”. I shall return to the controversy about that endorsement below. There was also, as I mentioned above, a controversy as to whether Ms Chaarani received a confirmation letter from the respondent dated 22 October 2012. In her own evidence, Mr Chaarani said that she had. What had the appearance of being the original of the letter, however, was tendered, without objection, by the respondent during the evidence-in-chief of Mr Salman. He said no more about it than to identify it as a letter from him to Ms Chaarani, and to identify his handwriting on a yellow note stuck to it which said, “Not to be sent”. However, the significance of this letter (to the matters presently under discussion) was not that it was sent or received, nor even that it provided the basis for a new contractual arrangement between the respondent and Ms Chaarani, but that it contained an acknowledgement that Ms Chaarani was, as she said in her evidence, employed on a replacement basis in 2012. Even if the respondent’s case that the confirmation letter was not sent be accepted, like Ms Daniel, Ms Chaarani was one of four teachers who, according to Mr Salman’s report to the Board meeting of 22 November 2012, were “offered extensions on their replacement contracts for 2013”. At best for the respondent, therefore, it may be inferred that, although Mr Salman signed a letter on 22 October 2012 which would have offered her ongoing employment, at some point over the following month or so he changed his mind and offered her only an extension on her replacement contract.
68 The evidence, and considerations, to which I have referred sustain the conclusion, which I draw, that Ms Chaarani was employed on a fixed-term basis in 2012.
69 I have summarised the circumstances of Ms Ahmed’s employment at para 37 above. In an affidavit affirmed on 9 November 2012 in proceeding MLG 222/12 in the Federal Magistrates Court, Mr Salman said that, in September 2011, Ms Ahmed was working as a replacement teacher on a 0.6 teaching load. He said that, in that month, Ms Ahmed “was not required to sign a new contract as she was already on a replacement, fixed-term contract for the duration of 2011 ….” Cross-examined in the present case about this evidence, Mr Salman confirmed that, if he did give this evidence in the Federal Magistrates Court, it would have been correct. Further, in his evidence in this case, when shown the terms of his report to the Board on 22 November 2012, Mr Salman accepted that, in 2012, Ms Ahmed was employed as a replacement teacher.
70 From the whole of this evidence, it is, I would hold, established on the probabilities that Ms Ahmed was employed as a replacement – ie as a fixed-term – teacher in 2012.
71 Thus I accept the applicants’ case that, in 2012, the respondent employed a total of 14 teachers for fixed periods at the primary campus. It remains to consider whether it was entitled to do so under the terms of cl 10.6(c) of the award.
72 It is established on the pleadings that, at the start of the 2012 school year, there were three teachers on leave from their work at the primary campus. Additionally, the respondent contends that Ganime Ocal was on leave and that Angela Florio and Rania Gouda were performing other duties temporarily.
73 Ms Ocal was a primary generalist teacher employed on an ongoing basis in 2011. On 29 January 2012, she sent an email to the respondent indicating that, due to the necessity for her to attend a family funeral in Turkey, she would not be returning to work until 29 February 2012. On 23 February 2012, the Board of the respondent made a decision in relation to Ms Ocal that was recorded in the minutes as follows: “Termination of tenure. She can reapply upon her return to Australia.” In his affidavit, Mr Salman described this as a termination of Ms Ocal’s contract. The respondent’s position is that Ms Ocal was “on unauthorised leave, but leave nonetheless”. The applicants’ position is that Ms Ocal had abandoned her employment.
74 To be “on leave” is to be absent from one’s place of work by permission. Thus “leave” is such an absence. When the FW Act refers to an employee’s entitlement to leave, this is a reference to his or her entitlement to be absent from work with permission. That is to say, the employer must give permission. The more general concept of absence as such is also referred to, for example in s 352, which applies in the case of an absence whether or not permitted by the employer.
75 To say that Ms Ocal was, at the start of the 2012 school year, on “unauthorised leave” is a contradiction in terms. She was absent from work, but had not been given leave to be absent. She was not “on leave” within the meaning of cl 10.6(c) of the award.
76 Ms Florio had been employed as a primary generalist teacher at the primary campus since 1986. It was Mr Salman’s evidence that, since “at least” 2010, Ms Florio had “taken on additional responsibilities” as an assistant head at the primary campus. Then, by letter to her dated 25 November 2010, she was relieved of her classroom duties for the 2011 school year to head the International Baccalaureate PYP Taskforce. In November/December 2011, Ms Florio’s task would be “reviewed”. By letter dated 30 November 2011, Ms Florio was informed that she was relieved of her classroom duties for the 2012 school year “to work with the National Curriculum Committee to review our Primary School Curriculum within the parameter of the International Baccalaureate PYP philosophy and guidelines.” She was to continue carrying out her duty as assistant to the head of campus for the tasks and duties that the head of campus allocated to her. In final submissions, it was put on behalf of the applicants that this letter of 30 November 2011 was not authentic, but a copy of the letter was exhibited to the affidavit of the author, Mr Salman, affirmed 17 months before the commencement of the trial, and no suggestion of inauthenticity was put to him under cross-examination. In those circumstances, I could not accept this submission.
77 On the evidence to which I have referred, I find that Ms Florio was, in the 2012 school year, performing other duties temporarily such as to engage the operation of cl 10.6(c) of the award.
78 It was submitted on behalf of the applicants, however, that Ms Florio’s engagement on these other duties was such that she was no longer covered by the award at all, and thus not an “employee” within the meaning of cl 10.6(c). Under the award, an “employee” was “a person employed as a teacher in the school education industry or children’s services and early childhood education industry ….” The word “teacher” was not itself defined in the award, but the applicants submitted that, in 2012, Ms Florio did not teach and was not, therefore, a teacher.
79 The premise which underlies this aspect of the applicants’ case – that someone allocated non-teaching duties on a temporary basis, and who does not, for the period of that allocation, perform teaching work, would not be “employed as a teacher” within the meaning of the award – should not be accepted. In my view, cl 10.6(c) applies in the case of a teacher performing any other duties, so long as the situation might be described as “temporary”. It was not suggested that the underlying basis of Ms Florio’s employment was otherwise than as a teacher. Her allocation to duties associated with the National Curriculum Committee in 2012 was by way of a direction given by her employer generally within the scope of her employment. The nature of her engagement by the respondent did not change.
80 Thus I hold that, in the 2012 school year, the respondent was entitled to treat Ms Florio as an employee performing other duties temporarily for the purposes of cl 10.6(c) of the award.
81 Ms Gouda was employed as an arts/generalist teacher at the primary campus. She took art classes there in 2011. By letter dated 30 November 2011, she was informed by Mr Salman that she was appointed as Assistant Director of the respondent’s Academic Affairs Council for the 2012 school year. She was “relieved from [her] classroom duties, except for a very small allotment for 2012”. In my view, this amounted to the allocation to Ms Gouda of other duties temporarily within the meaning of cl 10.6(c) of the award. In final submissions, it was put on behalf of the applicants that Mr Salman’s letter of 30 November 2011 was not authentic, but a copy of the letter was exhibited to his affidavit to which I have referred in the context of Ms Florio. As there, so too here, no suggestion of inauthenticity was put to him under cross-examination. In those circumstances, I could not accept this submission.
82 Thus I hold that, in the 2012 school year, the respondent was entitled to treat Ms Gouda as an employee performing other duties temporarily for the purposes of cl 10.6(c) of the award.
83 The end position reached as a result of the respondent’s admissions and these low-level findings is that, in relation to the 2012 school year, there were five employees (three on leave and two performing other duties temporarily) in place of whom the respondent was entitled to employ replacement teachers for fixed periods under cl 10.6(c) of the award. There were, therefore, nine teachers engaged in that year in contravention of that subclause.
COMPENSATION
84 The applicants contend that Ms Butters-Cain is entitled to compensation under s 545(2)(b) of the FW Act in respect of the respondent’s contravention of cl 10.6 of the award and therefore of s 45 of that Act. Here the question is: what loss did Ms Butters-Cain suffer because of that contravention? The applicants’ case is that, absent the contravention, Ms Butters-Cain would have been employed on an ongoing basis in the 2012 school year, and that her employment would not have been terminated at the end of that year.
85 As noted above, Ms Butters-Cain was a replacement teacher at the primary campus in the 2011 school year. In her affidavit, Ms Leyla Mohamoud, the Head of the primary campus, said that the respondent “needed to retain the teaching load of several replacement teachers for the 2012 school year”. She decided that Ms Butters-Cain should continue as a replacement teacher in 2012, again as a Grade 2 teacher. She spoke to Mr Salman about this, and he approved of her decision. This part of Ms Mohamoud’s evidence was confirmed by Mr Salman. Neither of them was cross-examined about it. Neither of them was tested as to what the respondent would probably have done in October 2011 had it confronted the reality that it was limited to the employment of five teachers on fixed-term contracts.
86 The applicants’ difficulty is that the employment of Ms Butters-Cain on an ongoing basis did not represent the respondent’s award obligation. Thus the counterfactual under which the contravention would not have occurred is not that Ms Butters-Cain would have been so employed. Rather, the award obligation was not to employ more than five fixed-term teachers. The counterfactual is no more favourable to the applicants’ case than that the respondent would not have employed more than five fixed-term teachers. How they would have covered the Grade 2 vacancy was not teased out when Mr Salman and Ms Mohamoud were giving evidence. The universe of possibilities is that Ms Butters-Cain would have been employed as one of no more than five fixed-term teachers, that she would have been employed as an ongoing teacher, and that someone else would have been employed in that position, with Ms Butters-Cain not being employed at all. The possibility that would open the gate to a consideration of compensation for Ms Butters-Cain is one only of these three. There is nothing in the evidence that would enable the court to rate that possibility as the most likely of the three.
87 For those reasons, Ms Butters-Cain’s claim for compensation must be rejected.
THE FIRST ORDER UNDER S 483AA OF THE FW ACT
88 By letter to the respondent dated 29 October 2012, the solicitors for the applicants stated that they acted for the applicant in respect of its members Ms Burns, Ms Butters-Cain (ie the second applicant), Rita Ioannou, Ms Milionis and Nabiha Merhi. They alleged contraventions of cll 10.2 and 10.6 of the award in respect of those teachers, stating, amongst other things, that these teachers were “employed on an ongoing basis”. By letter dated 2 November 2012, Mr Salman replied, stating that these five teachers “were offered limited tenure contracts for replacement purposes”.
89 On 9 November 2012, using Form F43 under the Fair Work Australia Rules 2010 (Cth), Messrs Matson and Schmidt, both permit-holders within the meaning of Subdiv A of Div 2 of Pt 3-4 of the FW Act, applied for the making of an order under s 483AA of that Act. They specified the primary campus and the secondary campus as the “premises to be entered”. They identified s 45 of the FW Act as the provision of which they suspected a contravention.
90 The non-member records to which access was sought were identified as follows:
For the purpose of this application “Records” includes but is not limited to contracts of employment, letters of offer, applications for leave, letters approving leave, letters of resignation and letters of termination and letters of resignation.
For the purpose of this application “Teachers” means all employees or prospective employees of AIA who are engaged as teachers or AIA is seeking to engage as teachers at either the Coburg or North Coburg campuses of AIA.
The Applicants seek access to Records that evidence the number of Teachers:
a) employed on a fixed-term basis during the 2011 school year;
b) employed on a fixed-term basis during the 2012 school year;
c) offered fixed-term employment for the 2013 school year or part of it;
d) that have accepted an offer of fixed-term employment for the 2013 school year or part of it;
e) on leave for one school term or more
a. of the 2011 school year;
b. of the 2012 school year;
f) who have applied for leave for one school term or more of the 2013 school year;
g) who have been approved by the Employer to take leave for one school term or more of the 2013 school year; or
h) whose employment terminated after the commencement of
a. the 2011 school year;
b. the 2012 school year.
91 In their grounds for that application, Messrs Matson and Schmidt referred to the relevant provisions of the award and continued:
3. The Award applies to and covers all teachers employed by the Employer at its campuses in Coburg and North Coburg.
4. The IEUA is entitled to represent the industrial interests of all teachers employed by the Employer at its campuses in Coburg and North Coburg.
5. The Applicants are officers of the IEUA.
6. Since 2009, officers of the IEUA have met with members and non-members employed by the AIA as teachers. During these visits employees have raised concerns that they had purportedly been engaged on a “replacement” (fixed-term) basis where there is no ground to do so under Clause 10.6 of the Award.
7. On 23 October 2012, the IEUA was contacted by three members who had been advised that their “replacement” contracts would not be renewed in 2013.
8. Of the three members referred to above two of them were engaged purportedly on a ‘replacement basis’ for both the 2011 and 2012 school year.
9. In addition to the above three members the IEUA has been contacted by another two members who have been offered an extension of their “replacement period of employment” for part of the 2013 school year.
10. Members who approached the IEUA were from both the Coburg and North Coburg campuses of the Employer.
Breach of cl 10.2(c)
11. On 26 October 2012, Mr Matson (the First Applicant) met with IEUA members who provided documentation as to the status of their employment. The documentation in respect of each indicated that the AIA considered each to be employed on a fixed-term basis.
12. The letters of appointment and other documentation shown to Mr Matson do not indicate who the employees were engaged to replace or the reason for the replacement arrangement. On this basis the Applicants reasonably suspect that the Employer has engaged in breaches of clause 10.2(c) of the Award and therefore s 45 of the Fair Work Act 2009.
Breach of cl 10.6
13. Each of the Employees [sic] contracts of employment or letters of offer and the letters advising of the extension or termination of their employment, assert that the position is a “replacement” position.
14. The IEUA has been advised by members that there are more than 10 teachers employed on fixed term contracts by the Employer and only one teacher on extended leave.
15. One member, who commenced employment in term 2, was told verbally that she was replacing an employee on maternity leave. The same member was subsequently told by other members that she was replacing an employee who had ceased employment with the Employer.
16. Another member who commenced employment in term 1 of 2011 was not told anything by the Employer about who she was replacing. After commencing employment other staff told her that she was replacing a teacher who had ceased employment prior to the commencement of term 1.
17. Two members have advised the IEUA that, since commencing employment with the Employer, other teachers have told them that they were employed to replace teachers whose employment had terminated prior to the commencement of the school year.
18. One member has advised the IEUA that other staff have told her that the Employer tells new staff that they are filling maternity leave positions regardless of whether this is in fact the case.
19. One member’s letter of appointment does not refer to the members position being a “replacement” or “fixed term.” The member understood that she was employed on a full-time ongoing basis. However, on 22 October 2012, the Employer gave the member a letter offering to “extend the replacement period of appointment” up to June 2013.
20. None of the letters of appointment provided by the Employer state the reason for the replacement arrangement or nominate the teacher that the members were employed to replace.
21. On the bases of the above, the Applicants reasonably suspect that the Employer has breached cl 10.6 of the Award and therefore s 45 of the Fair Work Act 2009.
Need for Records
22. The Employer has stated that members of the IEUA employed on a fixed term basis were employed to replace employees on leave. However the Employer has not set this out in the letters of appointment given to the employees.
23. The Employer has not specified the employee on leave that each employee has allegedly been employed to replace.
24. The Applicants reasonably suspect that the number of employees purportedly employed on a fixed term basis exceeds the number of employees on leave.
25. The Applicants reasonably suspect that the Employer has engaged employees on a fixed term basis to replace employees who have left before the commencement of the school year.
26. The Applicants reasonably suspect that the Employer is employing teachers on a fixed term basis other than in accordance with clause 10.6 of the Award.
27. Accordingly, to investigate the suspected breaches it will be necessary to have access to records sufficient to show:
o Which teachers have taken extended leave (including maternity or long service leave of one school term or more) and the periods of such leave;
o Which teachers are or have been engaged on a fixed-term basis, the commencement and termination dates of each term of engagement and the purported reason for each such engagement;
o Which teachers have ceased to be employed by the AIA at the two Coburg campuses, the dates of the cessation of employment and how each has been replaced;
o The identity of each newly appointed teacher and the position to which they were appointed.
92 Messrs Matson and Schmidt supported that application with statements of facts known to them which, amongst other things, identified the teachers referred to by name. In his statement, Mr Matson said that the three teachers referred to in para 7 of the grounds were Ms Burns, Ms Butters-Cain and Ms Ioannou, all primary teachers. The two referred to in para 8 were Ms Burns and Ms Butters-Cain. The two referred to in para 9 were Ms Milionis and another teacher who did not want her name to be revealed. All of the teachers referred to in paras 7, 8 and 9 were members of the applicant. The members referred to in paras 15 and 16 were Ms Ioannou and Ms Butters-Cain respectively. The members referred to in para 17 were Ms Burns and Ms Milionis. The member referred to in para 18 was Ms Ioannou. The member referred to in para 18 was Ms Milionis. In his statement, Mr Matson concluded:
17. By reason of the above I reasonably suspect that there are more employees engaged on fixed term contracts than those for whom we have the details, including non members. Further, I reasonably believe, given the terms of the contract for the members that we have, that the contracts or the letters of appointment of other employees do not set out the reasons specifically for the purpose of engagement in terms provided by clause 10.1 of the award.
18. I reasonably believe that, on the basis of information in relation the number of employees engaged on fixed term contracts and the number of employees on leave that the respondent is employing persons contrary to the provisions of clause 10.6 of the award.
93 In his statement, Mr Schmidt said that he had attended two meetings with members of the applicant at each of the respondent’s campuses, at each of which he spoke both to members of the applicant and to non-members. At a meeting on 6 June 2012, Mr Schmidt was told that there was a large number of people on fixed-term contracts who were concerned about their position. At a meeting on 7 August 2012, Mr Schmidt was told that there was a number of people on rolling fixed-term contracts without having been given any reason therefor. In his statement, he continued:
On 23 October 2012 I was contacted by a member both on her behalf and on behalf of two other members employed by the respondent. I had been in contact with this member throughout October. She had earlier raised with me concerns about fixed term employment.
The date on which the member contacted me was also the date on which 6 persons employed by the respondent were told the contracts would not be renewed. I was also told that new staff had been employed in substantially similar roles.
In addition to the persons in respect of whom the member communicated to me on 23 October 2012 I am aware that the IEUA has been contacted by another two members who have been offered an extension of their “replacement period of employment for part of the 2013 school year.
Mr Schmidt’s statement concluded:
I am aware of the documents to which Denis Mattson refers. On the basis of the documents, my conversations with members and non-members employed by the respondent I reasonably suspect that contraventions have occurred of clause 10 of the award binding the respondent in that the contracts of employment do not refer to the reason for the engagement as a fixed term employee and, further, that the circumstances set out in clause 10.6 of the award which would otherwise just permit the employment of fixed term employees do not exist.
94 In what the FWA member who heard the application for a s 483AA order considered to be a departure from normal practice, the respondent had, it seems, been notified (by FWA itself, not by the applicant) of the making of that application, and was represented by its solicitor when the application was listed on 22 November 2012. In the result, Mr Matson, who gave evidence (as did Mr Schmidt), was cross-examined in the proceeding in FWA.
95 In chief, Mr Matson referred to his statement and clarified that, since about 2009, he had met with members and non-members employed as teachers by the respondent who worked at each of the respondent’s campuses, and that he had “spoken to members employed at the primary campus and members employed at the secondary campus who [had] expressed concerns about fixed term contracts”. He said that, of the 10 teachers referred to in para 14 of the grounds, he had been advised that at least six were employed at the secondary campus.
96 Under cross-examination, Mr Matson said that the five teachers referred to in the applicant’s solicitors’ letter to the respondent dated 29 October 2012 had been “raised … as examples of [the applicant’s] concerns”. Those five teachers were about to have their employments terminated, and were prepared to identify themselves.
97 In submissions made in support of the making of a s 483AA order, counsel for the applicants said:
The first submission I make is that demands made in respect of named employees for whom evidence is in possession of the lEU should not be confused with the holding of reasonable suspicion in respect of others. That is, the fact that the lEU holds evidence in respect of its members in the circumstances described in the submission give rise to the reasonable suspicion that the breach as alleged by the lEU is happening more widely than members but also given the evidence that Mr Matson gave orally also in respect of both primary and secondary school campuses.
….
First of all what needs to be established is the number of persons on fixed term contracts. Secondly the number of persons who are on the relevant type of leave as provided in clause 10.6 and that includes both primary and secondary campus.
98 The respondent’s solicitor submitted that the correspondence of 29 October 2012 demonstrated that the permit-holders’ suspicions related only to five named members of the applicant, all of whom were primary teachers, and that “any orders that are made in relation to access to documents must be confined to the suspected contraventions that affect those members.” In response to this submission, counsel for the applicant put Mr Schmidt in the witness box, and he clarified that one of the teachers to whom he had referred in his statement was a secondary teacher.
99 It was apparent from the observations made in the running by the member of the FWA that she was satisfied within the terms of s 483AA(2) of the FW Act, and that she well understood, that the nature of the suspicions held by Messrs Matson and Schmidt travelled well beyond the teachers to whom they had spoken and related both to primary and to secondary teachers and both to members of the applicant and to non-members. The metaphor was not used, but is clear that the case being put to FWA by Messrs Matson and Schmidt, and accepted by FWA, was that they suspected that the circumstances of the teachers to whom they had spoken may have been the tip of the iceberg.
100 At the end of the hearing on 22 November 2012, FWA made an order under s 483AA in the following terms:
1. The order applies to non-member Records or Documents held by the Australian International Academy of Education Inc (AIA) in respect of Teachers whose employment falls or would fall within the coverage of the Educational Services (Teachers) Award 2010.
2. The specified non-member Records or Documents are those Records or Documents that:
a. evidence the number of Teachers:
i. employed on a fixed-term basis during the 2011 school year;
ii. employed on a fixed-term basis during the 2012 school year;
iii. offered fixed-term employment for the 2013 school year or part of it;
iv. that have accepted an offer of fixed-term employment for the 2013 school year or part of it;
v. on leave for one school term or more
1. of the 2011 school year; or
2. of the 2012 school year;
vi. who have applied for leave for one school term or more of the 2013 school year;
vii. who have been approved by the Employer to take leave for one school term or more of the 2013 school year; or
viii. whose employment terminated after the commencement of
1. the 2011 school year; or
2. the 2012 school year;
b. insofar as any of the Records or Documents referred to in paragraph 2(a) relate to the commencement or cessation of employment of a Teacher, Records or Documents that evidence:
i. the dates of the commencement and cessation of employment of the Teacher;
ii. the name of the Teacher and the position to which they were appointed; or
iii. the campus the Teacher worked at or was offered employment at.
3. For the purpose of this Order:
a. “Records or Documents” include but is not limited to contracts of employment, letters of offer, applications for leave, letters approving leave, letters of resignation and letters of termination; and
b. “Teachers” means all employees or prospective employees of AIA who are engaged as teachers or AIA is seeking to engage as teachers at either the Coburg or North Coburg campuses of AIA.
4. The nominated permit holders are allowed to:
• Require AIA to allow them to inspect, and make copies of, the non-member records or documents (or parts of such records or documents) under s.482(1)(c) of the Act; and
• Require AIA to produce, or provide access to, the non-member records or documents (or parts of such records or documents) under s.483(1) of the Act.
101 After the FWA hearing had concluded, at 4:13 pm on 22 November 2012 the respondent’s solicitor sent an email to Mr Salman which contained the following passage:
As we have previously discussed with you, and Ms Mahamoud and Mr Galea at the hearing, the nature of this application was to obtain access to non-member documents in relation to a suspicion of an Award breach. We assessed that this condition, requiring a lower than usual standard of proof, would be met by the IEU. [F]urther, we did not consider it appropriate or beneficial to expose Mr Galea or Ms Mahamoud to cross-examination.
Shortly, we will receive the final orders. The IEU will then seek to them [sic] by requiring AIA to produce the necessary documents. [We] requested the solicitors for the IEU to see if the IEU would provide you with a reasonable amount of notice to produce the documents. In the meantime you should obtain the documents as a matter of priority and let us know if you have any questions on what documents should be produced.
THE VALIDITY OF THE FIRST ORDER
102 The respondents say that the order made on 22 November 2012 was invalid because FWA could not have been satisfied that the order was necessary to investigate the suspected contravention (or contraventions), as required by s 483AA(2). In this context the “suspected contravention” was the contravention of the FW Act that related to, or affected, one or more of the applicant’s members who performed work on the premises: s 481(1). The respondents accept that there were five members of the applicant in relation to whom Messrs Matson and Schmidt suspected that there had been, or were, contraventions of s 45 of the FW Act (although they contend that only one of them performed work on the premises which Messrs Matson and Schmidt entered). They accept, as they must, that some kind of order under s 483AA might have been justified. However, they submit that the necessity to which s 483AA(2) refers is linked, via the reference to s 483(1)(c) in para (a) of subs (1) of s 483AA, to records and documents of a class that the permit-holder might lawfully require for inspection and copying when on the premises.
103 According to the respondents, FWA’s error was to have expressed its order in the broad terms that it did, rather than limiting the range of documents that might be inspected to those which were “directly relevant” to the suspected contraventions that related to or affected the members of the applicant in relation to whom the suspicion arose. What FWA impermissibly did, it is said, was to apply a broader test of connection between the contraventions and the documents authorised to be inspected than was permitted by the relevant provisions – a test which, as the respondents put it, authorised Messrs Matson and Schmidt to undertake a “fishing expedition”.
104 In order to address this submission, it is necessary to understand the place of s 483AA in Subdiv A and its relationship with s 482(1)(c). For that purpose, some reference to the legislative history may be instructive.
105 Under s 286 of the Industrial Relations Act 1988 (Cth) (“the IR Act”), before renamed in 1996, an officer of an organisation relevantly authorised in writing by the secretary of the organisation, or of a branch of the organisation, might enter “prescribed premises” for the purpose of ensuring the observance of an award binding the organisation. While on the premises, the officer might inspect any document on the premises. “Prescribed premises” were premises in which work to which the award applied was being carried on, and, importantly in the present case, premises occupied by an employer bound by the award. The officer’s purposes did not need to be confined to the circumstances of a member of the relevant organisation.
106 In 1996, when the IR Act was renamed the Workplace Relations Act 1996 (Cth) (“the WR Act”), s 286 was repealed and the right of entry provisions became the subject of Div 11A of Pt IX of that Act. In the Bill for this amendment, as originally introduced, s 286 would have been replaced with a right of entry provision under which an officer of an organisation was permitted to enter the premises of an employer only if invited by members of the organisation who carried on work at the premises. That was one of a number of respects in which the Bill was not acceptable to the Senate. The amendment which became Div 11A was the result of an agreement between the Government and the Australian Democrats. Under the new s 285B, an officer of an organisation who held a permit issued by the Registrar might enter any premises where employees who were members of the organisation worked. While on the premises, the officer was entitled to require the employer to allow him or her to inspect and to copy any document (with certain specific, and presently irrelevant, exceptions). Thus, while the premises were confined to those where members of the organisation worked, the documents of which inspection and copying might be required were not limited to those that related to members.
107 In 2005, by amendments introduced into the WR Act by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), the existing right of entry provisions were repealed and replaced by a new Pt 15. Under s 747, if “a permit holder for an organisation” suspected, on reasonable grounds, that a breach of (amongst other instruments) an award had occurred, or was occurring, he or she might, for the purpose of investigating the suspected breach, enter premises if work was being carried out on the premises by one or more employees who were members of the organisation and the suspected breach related to, or affected, that work or any of those employees. Under s 748(4), while on the premises, the permit-holder might, for the purpose of investigating the suspected breach, require an affected employer to allow the permit holder to inspect and to copy “any records relevant to the suspected breach (other than non-member records)” that were kept on the premises or accessible from a computer that was kept on the premises. An “affected employer” was an “employer of affected employees”, and an “affected employee” was, relevantly, an employee who carried out work on the premises, who was a member of the permit-holder’s organisation and to whom, or to whose work, the suspected breach related or whom, or whose work, it affected. A “non-member record” was a record that related to the employment of a person who was not a member of the permit-holder’s organisation and did not also relate to the employment of a person who was a member of that organisation. At that time (ie after the 2005 amendments) s 748(9) and (10) of the WR Act provided as follows:
(9) The permit holder may, for the purposes of investigating the suspected breach, apply to the Commission for either or both of the following orders:
(a) an order to allow the permit holder to enter the premises and to inspect and make copies of non-member records that are relevant to the suspected breach;
(b) an order to require an affected employer to produce, or allow access to, such records for inspection and copying.
(10) The Commission may make such an order if it is satisfied that the order is necessary to investigate the suspected breach. Before doing so, the Commission must have regard to the conditions (if any) that apply to the permit holder’s permit.
108 Under the Bill for the FW Act, as introduced in 2008, cl 481 was in the same terms as the section ultimately enacted, as set out earlier in these reasons. So was cl 482, save in two important respects: para (c) of subcl (1) did not contain what later became the parenthetical exclusion of non-member records or documents, and was not confined to records or documents that were directly relevant to the suspected contravention. Neither did the Bill contain the provision which later became s 483AA. Then, by an amendment introduced into the Senate on 18 March 2009, non-member records and documents were excluded from cl 482(1)(c), cl 482(2A), defining the term “non-member record or document”, was introduced, and cl 483AA was also introduced. Finally, by a later amendment introduced into the Senate on 17 March 2009, the qualifier “that is directly” was introduced into cl 482(1)(c).
109 It is apparent that the extent of a permit-holder’s right to inspect and to copy documents which related only to employees who were not members of the relevant organisation has, over the years, been a sensitive question at the policy level. The balance which the legislature sought to achieve in Pt 3-4 was the subject of observation by Flick J (Tracey J concurring) in Australasian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389, 405-406 [56]-[59]. The provisions are beneficial ones, and should be construed with an eye on the important role of organisations in protecting their members against contraventions of statutory and award provisions. But the particular provisions with which I am concerned in this case have been the subject of very detailed attention by the legislature, and involve some rather fine discriminations which, the history shows, were consciously made.
110 Returning to the terms of Pt 3-4 of the FW Act itself, s 482 operates only where there is a suspicion of contravention which relates to, or affects, a member of the permit-holder’s organisation (and then only where the organisation is entitled to represent the industrial interests of that member, and the member works on the premises concerned). The section permits the permit-holder to inspect any work, process or object that is relevant to the suspected contravention. Insofar as this provision relates to work, it is not limited to work done by the member concerned – nor even, for that matter, by a member – but it must be relevant to the suspected contravention. Under para (b) of subs (1), the person who may be interviewed is not limited to a member of the organisation (but is limited in other ways). And, absent the passage in parenthesis, the right to inspect and to copy a record or document would not be so limited either, but the record or document has to be directly relevant to the suspected contravention and be kept on the premises or accessible from a computer kept on the premises.
111 But the passage in parenthesis places a further limit on the range of records and documents that may be inspected and copied under para (c) of subs (1). So, even a document which is kept on the premises and which is directly relevant to the suspected contravention may not be inspected or copied if it falls within the definition of “non-member record or document” in subs (2A). It is only with such a document that s 483AA is concerned.
112 Section 483AA shows that the legislature recognised that there may be situations in which, for the proper investigation of the suspected contravention, it was necessary for the parenthetical exclusion in s 483(1)(c) to be lifted. The notion of “necessary” in s 483AA(2) carries the meaning that the investigation could not be properly investigated with that exclusion in place. Whether or not that would be so in a particular case was a matter for the satisfaction of FWA (as the Commission was called at the time of the facts of the present case). Absent the availability of a conventional ground of administrative law challenge (such as that made by the respondents here), the question whether a s 483AA order was necessary in a particular case would not be justiciable elsewhere.
113 As a measure of how limited is the process for which s 483AA provides, FWA was required to consider the matter of necessity not in the broad, but only in relation to “specified non-member records or documents”. Thus, although under s 482(1)(c) in its primary operation it was a matter for the permit-holder (at least in the first instance) to identify the records or documents sought to be inspected and copied, in the operation of the paragraph as extended by an order made under s 483AA it was a matter for FWA to specify the non-member records or documents that might also be inspected and copied.
114 Whatever order might have been made in a particular case under s 483AA, the permit-holder’s right to require inspection and copying of non-member records or documents could not travel beyond the other limits imposed in s 482(1)(c). Put another way, even with the assistance of such an order, he or she could never have a right to require inspection and copying of non-member records or documents more extensive than his or her right to require inspection and copying of other records or documents. Specifically in the context of the respondents’ point in the present case, those records or documents had to be directly relevant to the contravention – being one which related to or affected a member – which the permit-holder suspected.
115 It follows, in my view, that the question which FWA was required to address under s 483AA was whether it was necessary, for the proper conduct of the investigation, that the documents which the permit-holder was entitled to require to be inspected or copied under s 482(1)(c), as being directly relevant to the contravention, included non-member records and documents as defined.
116 Did FWA address that question? There is no evidence of a separate published decision containing the Commissioner’s reasons for the order which she made under s 483AA, but it is clear from the transcript of the proceeding on 22 November 2012 that she accepted the case that was put to her on behalf of the permit-holders. Fundamental to that case were the twin propositions that Messrs Matson and Schmidt reasonably suspected contraventions which related to teachers both at the primary campus and at the secondary campus, and to teachers who were not, as much as to teachers who were, members of the applicant. The way it was put on behalf of the permit-holders was that the establishment of a contravention of cl 10.6 of the award required one to know (1) what teachers were employed on a fixed-term basis, and (2) what teachers were on leave (or affected by one of the other factors mentioned in cl 10.6(c)). The case was that their investigation involved, in effect, a matching of (1) against (2). Thus it was necessary to have access, for example, to appointment letters and the like that “evidenced” those who were employed on a fixed-term basis, as well as to leave records. That was the case that FWA accepted.
117 In making its order under s 483AA, FWA was confined to the permit-holders’ suspected contraventions insofar as they related to members of the applicant. But cl 10.6 operated in a way which made the fact of another teacher, whether or not a member, being on leave (etc) directly relevant to the question whether the respondent was authorised to employ the particular member, in relation to whom a contravention was suspected, on a fixed-term basis. If the permit-holders’ suspicions went no further than that, there may have been no basis for further investigation, and thus for an order under s 483AA which travelled beyond documents which tended to demonstrate whether a particular teacher was on leave (etc). If the permit-holders’ suspicions did go further than that, however, a more extensive order would be within the remit of FWA under the section. I shall attempt to explain what I mean by this.
118 Take a situation in which a particular teacher, A, is employed for a fixed term and is a member of the applicant. Assume that A is unaware of any circumstances that would authorise his or her fixed-term employment under cl 10.6, and tells the permit-holders so. As a result of that information, the permit-holders suspect that the respondent is contravening the clause in relation to A. How could the permit-holders investigate that suspected contravention? The respondent might justify its position by demonstrating that a second teacher, B, is on leave. But the permit-holders would not be obliged to accept what the respondent says in this regard. They might have information that B’s leave is referable not to A but to another teacher employed for a fixed term, C. If that were their suspicion, the terms on which C is employed would be relevant to the contravention suspected in relation to A. Whether C is a member of the applicant would be neither here nor there.
119 The case which Messrs Matson and Schmidt put to FWA was that a number of members were engaged by the respondent for a fixed term and it was not clear who they were replacing. But the information available to them was that there were, in addition, other teachers, including non-members, who were also so engaged. It appeared to them to be unlikely that each of the fixed-term teachers was, or could be, matched with someone who was on leave (etc). Whatever the actual facts, that was the nature of their suspicions, and FWA was entitled to act on them. The suspicions were tied back to contraventions which related to members, but it was within the sphere of a proper investigation of them to know which teachers, whether members or not and at both campuses, were employed on a fixed-term basis.
120 The question which FWA was required to address under s 483AA(2) was whether an order under the section was necessary to investigate the contravention (or contraventions) which the permit-holders suspected. I am not sure that, at that stage, whether a particular document was “directly relevant” to the contravention was a matter which FWA was required to consider, but the permit-holders’ case proceeded on the footing that any requirement of direct relevance was satisfied. Given the way cl 10.6 operates as I have explained it, and in a factual setting where the respondent had not, by its own documentation, provided any indication of the identity or circumstances of the teachers who were being replaced by the members of the applicant who were employed on a fixed-term basis, it was, I would hold, amply open to FWA to be satisfied of the direct relevance of the documents referred to in the order sought, and ultimately made, under s 483AA.
121 For those reasons, I reject the respondents’ challenge to the validity of the order made by FWA on 22 November 2012.
THE FIRST VISIT TO THE RESPONDENT’S PREMISES
122 At 9:30 am on 23 November 2012, Messrs Matson and Schmidt gave notice to the respondent conformably with ss 487 and 518 of the FW Act that they proposed to enter the primary campus and the secondary campus on 27 November 2012, they forwarded a copy of the FWA order under s 483AA and, in a covering memorandum, Mr Matson said that copies of records and documents in respect of all teachers that met the description in that order were sought. The rights of entry invoked by these notices arose under s 481 of the FW Act, that is to say, they related to members of the applicant only. These rights did not rely on the order made by FWA on 22 November 2015. However, the notices were given under cover of a memorandum by Mr Matson to Mr Salman which referred to the proceeding in FWA on 22 November 2012 and stated that, in addition to the matters specified in the notices, he and Mr Schmidt would, upon entry on 27 November 2012, seek copies of records or documents in respect of non-members (ie all teachers) that fell within para 2 of FWA’s order (and setting out, verbatim, the classes of records and documents referred to).
123 At about 10:30 am on 27 November 2012, Messrs Matson and Schmidt attended the secondary campus. They went there, according to Mr Matson, because the respondent’s main administrative offices were located there. Mr Salman introduced them to the respondent’s personnel/office manager, Salim Boyaci, who would assist them with their requests for documents. Mr Salman gave Messrs Matson and Schmidt three lists which the respondent had prepared: of fixed-term employees, of employees whose employment had been terminated and of employees on leave. Each list showed the position in 2011 and 2012; and some limited information was provided in relation to the (prospective) position in 2013. In respect of the primary campus, the fixed-term employees in 2011 were Ms Milionis, Ms Burns, Ms Butters-Cain and one other; and in 2012 they were Ms Milionis, Ms Butters-Cain and three others. Messrs Matson and Schmidt were given the opportunity to peruse those lists, and did so unattended by any representative of the respondent.
124 The result of that perusal was the preparation of a list by Mr Schmidt headed “Contracts:”, setting out the names of various teachers under the headings “2011” and “2012”. In respect of both years, the list included the names of Ms Sheehan, Ms Cansiz, Ms Borova, Ms Onder, Ms Ahmed and Ms Oz. This list was given to Mr Boyaci with a request that he should use it to provide documents which related to the teachers mentioned. Mr Matson, whose evidence was adopted by Mr Schmidt, said in chief that this list was of “employees’ files that we wanted to see.” In his affidavit, Mr Boyaci said that he was, at this stage, asked for nothing other than the relevant teachers’ contracts. Under cross-examination, however, he agreed that the applicant’s representatives asked for the “personnel records of teachers”. When it was put to Mr Matson, under cross-examination, that he and Mr Schmidt had indicated, by reference to the latter’s two lists, which contracts they wanted to see, he replied, “We did provide lists of the employment documents we wanted to see, yes.” He was not further cross-examined on the distinction, if there were one, between employment contracts and the arguably wider term “employment documents” and, given the terms of those representatives’ notices of 23 November 2012, I regard it as more likely that he and Mr Schmidt did not confine their request to contracts in the narrower sense. Mr Boyaci departed to retrieve the documents that had been requested.
125 While Mr Boyaci was out of the room Mr Schmidt made a list headed “Leave documentation”, setting out the names of various teachers under the headings “2011” and “2012”, and a list headed “2012” setting out the names of five teachers, including Ms Ahmed, whose contracts, as Mr Matson put it in his evidence, they wanted to see.
126 On Mr Boyaci’s return with the personnel files of various teachers, Mr Matson satisfied himself that the copy documents thereby provided corresponded with the first list prepared by Mr Schmidt. Of these files, Mr Matson said in chief:
Each folder contained a number of documents including leave applications and performance reviews. The top document in each file was a contract of employment irrespective of whether the contract of employment was the most recent or oldest document on the file.
What Mr Matson referred to as a “contract of employment” was the relevant appointment letter of the teacher concerned.
127 Having satisfied himself that the only employment contract, or letter or document referring to the relevant teacher’s type of employment, in each file was located at the top of the file, Mr Matson asked for copies of each of those contracts. Mr Boyaci took the files away with a view to making those copies. When he did so, he also made a second copy of each document for retention by the respondent, as previously requested by Mr Salman.
128 Messrs Matson and Schmidt then produced the other lists which they had prepared – those headed “Leave documentation” and “2012” – and Mr Boyaci departed again to obtain copies of the documents referred to. On his return with the material requested, Mr Schmidt inspected the documents which related to leave, while Mr Matson satisfied himself that, in the files which related to the five additional teachers, the contracts of employment were on the top of the file in each case. He requested, and Mr Boyaci provided, copies of those contracts.
129 Finally, Messrs Matson and Schmidt made a request of Mr Boyaci in relation to further teachers – including Ms Daniel, Ms Chaarani, Ms Alshakshir and Ms Awari – and their files were duly produced (as was the contract of a teacher who had been specifically mentioned at an earlier stage but had been overlooked by Mr Boyaci). Again, the contracts, or equivalent documentation, were on the top of each file. At the request of Messrs Matson and Schmidt, Mr Boyaci provided copies of those contracts.
130 The appointment letters which, by the process I have outlined above, were produced by the respondent on 27 November 2012, were for the teachers indicated in the table below, which also gives, in respect of each teacher, the school year shown in the heading of the letter, her “tenure”, the date upon which her duties were to commence, the time fraction of her hours of work and the date upon which (according to the letters as produced) the letter was signed by the teacher concerned. It will be seen that there were two letters produced in respect of Ms Ahmed. I shall explain the circumstances of that in due course.
Name | School year | Tenure | Date of Commencement | Time fraction | Date of signature |
Alshakshir | 2009 | Full time | 19 Oct 09 | Full time | 19 Oct 09 |
Borova | 2011 | Full time | 27 Jan 11 | Full time | 21 Sep 10 |
Onder | 2011 | Full time | 27 Jan 11 | Full time | 3 Nov 10 |
Cansiz | 2011 | Full time | 27 Jan 11 | Full time | 22 Nov 10 |
Sheehan | 2011 | Full time | 27 Jan 11 | Full time | 6 Dec 10 |
Ahmed (1) | 2011 | Full time | 3 Feb 12 | Full time | 27 Jan 11 |
Ahmed (2) | 2011 | Part time | 27 Jan 11 | Part time 0.6 | 9 Feb 12 |
Awari | 2011 | Full time | 18 July 11 | Part time 0.8 | 21 Jul 11 |
Oz | 2011 | Full time | 31 Oct 11 | Full time | 2 Nov 11 |
Chaarani | 2012 | Full time | 31 Jan 12 | Full time | 9 Dec 11 |
Daniel | 2012 | Full time | 31 Jan 12 | Full time | 8 Nov 11 |
131 Messrs Matson and Schmidt left the secondary campus at about 12.30 pm on 27 November 2012.
THE SECOND ORDER UNDER S 483AA
132 Upon a thorough inspection of the copy contracts provided to him by the respondent on 27 November 2012, and taking into account information which had come to him from other sources, Mr Matson formed the view that those contracts had been, or at least may have been, altered by the respondent before copies were provided to himself and Mr Schmidt. I shall refer to the nature of Mr Matson’s concerns in due course, but the result was that he decided that the applicant’s purposes would best be served if he secured access to the electronic versions of the contracts and documents which had been provided in hard copy form on 27 November 2012.
133 On 5 December 2012, Messrs Matson and Schmidt applied, ex parte, for a second order under s 483AA of the FW Act. They also applied, ex parte, for an exemption certificate under s 519 of that Act, absolving them from the need to provide advance notice to the respondent of the exercise of the rights of inspection which they and Andrew McMullin, the technology officer employed by the applicant, and a permit-holder, proposed to exercise, under ss 481, 482 and 483AA.
134 In their amended application dated 6 December 2012, Messrs Matson and Schmidt specified the primary campus and the secondary campus as the “premises to be entered”. They identified ss 45, 482(3) and 502(1) of the FW Act as the provisions of which they suspected contraventions. In their grounds, they referred to the relevant provisions of the award and continued:
4. The Award applies to and covers all teachers employed by the Employer at its campuses in Coburg and North Coburg.
5. The Independent Education Union of Australia (“IEUA”) is entitled to represent the industrial interests of all teachers employed by the Employer at its campuses in Coburg and North Coburg.
6. The Applicants are officers of the IEUA.
7. Since 2009, officers of the IEUA have met with members and non-members employed by the Employer as teachers. During these visits employees have raised concerns that they had purportedly been engaged on a “replacement” (fixed-term) basis where there is no ground to do so under Clause 10.6 of the Award.
8. On 23 October 2012, the IEUA was contacted by three employees of the Employer, Alison Burn, Rita Ioannou and Georgia Butters-Cain, who had been advised that their “replacement” contracts would not be renewed in 2013.
9. Of the employees referred to above, two of them were engaged purportedly on a ‘replacement basis’ for both the 2011 and 2012 school year.
10. In addition to the above three members, Anna Milionis has been offered an extension of her “replacement period of employment” for part of the 2013 school year.
11. Members who approached the IEUA were from both the Coburg and North Coburg campuses of the Employer.
12. Alison Burn, Rita Ioannou, Georgia Butters-Cain and Anna Milionis are employed at the Primary School campus of AIA in Coburg.
Breach of cl 10.2(c)
13. On 26 October 2012, Mr Matson (the First Applicant) met with IEUA members who provided documentation as to the status of their employment. The documentation in respect of each indicated that the Employer considered each to be employed on a fixed-term basis.
14. The letters of appointment and other documentation shown to Mr Matson do not indicate who the employees were engaged to replace of the reason for the replacement arrangement. On this basis the Applicants reasonably suspect that the Employer has engaged in breaches of clause 10.2(c) of the Award and therefore s 45 of the Fair Work Act 2009.
Breach of cl 10.6
15. Contracts of employment, letters of offer, and letters advising employees of the extension or termination of their employment provided to the IEUA assert that the employees have been engaged in a ‘replacement’ position.
16. The IEUA was advised by members that there are more than 10 teachers employed on fixed term contracts by the Employer and, to their knowledge, only one teacher on extended leave.
17. Rita Ioannou, who commenced employment in term 2, was told verbally that she was replacing an employee on maternity leave. Ms Ioannou was subsequently told by other employees that she was replacing an employee who had ceased employment with the Employer.
18. Georgia Butters-Cain, who commenced employment in term 1 of 2011, was not told anything by the Employer about who she was replacing. After commencing employment other staff told her that she was replacing a teacher who had ceased employment prior to the commencement of term 1.
19. Anna Milionis and Alison Burn have been told by other employees that they were employed to replace teachers whose employment had terminated prior to the commencement of the school year.
20. Rita Ioannou has advised the IEUA that other staff have told her that the Employer tells new staff that they are filling maternity leave positions regardless of whether this is in fact the case.
21. Anna Milionis’ letter of appointment does not refer to her position being a ‘replacement’ or ‘fixed term’. Ms Milionis understood that she was employed on a full-time ongoing basis. However, on 22 October 2012, the Employer gave the member a letter offering to ‘extend the replacement period of appointment’ up to June 2013.
22. None of the letters of appointment provided by the Employer state the reason for the replacement arrangement or nominate the teacher that the members were employed to replace.
23. On the basis of the above, the First and Second Applicants formed a reasonable suspicion that the Employer has breached cl 10.6 of the Award and therefore s 45 of the Fair Work Act 2009.
Application to Fair Work Australia
24. On 9 November 2012 the First and Second Applicants, through their representatives, filed an application in Fair Work Australia to inspect non-member records pursuant to s 483AA of the FW Act.
25. A hearing of the application was held on 22 November 2012 (see Re Denis Matson and Simon Schmidt (RE2012/2029)).
26. On 22 November 2012 Commissioner Deegan made an order granting the First and Second Applicants access to the documents and records they sought (see Order PR531643) (the Order).
27. On 22 November 2012 Mr Matson gave notice to AIA on behalf the First and Second Applicants notifying their intention to enter the premises of AIA on 27 November 2012 to inspect documents and records pursuant to the Order.
28. On 27 November 2012 the First and Second Applicants entered the premises of AIA to inspect documents and records in accordance with the Order.
29. The entry, inspection and subsequent consideration of the documents and records are set out in the witness statement of Mr Matson accompanying this application.
Breach of s 502(1)
30. [Section 502(1) is here set out.]
31. The Applicants suspect that, during the inspection, the AIA did not provide the First and Second Applicants with the documents they requested and/or AIA intentionally provided documents that were not true copies of the documents they requested pursuant to the Order. The Applicants consider that this amounts to a contravention of s 502(1) of the FW Act.
32. The factual basis for the Applicants suspicion that the Employer has contravened s 502(1) of the FW Act is set out in the Statement of Mr Matson accompanying this application.
33. In addition to relying on the statement of Mr Matson the [Mr Schmidt] also relies on his own discussions with AIA employees, consideration of documents from AIA employees and documents provided during the inspection on 27 November 2012.
34. The basis for [Mr McMullin’s] suspicion of a contravention of s 502(1) is set out in his statement filed with this Amended Application.
Breach of s 482(3)
35. [Section 482(3) is here set out.]
36. The Applicants suspect that, during the inspection, the AIA did not provide the First and Second Applicants with the documents they required and/or AIA intentionally provided documents that were not true copies of the documents they required pursuant to the Order. The Applicants consider that this amounts to a contravention of s 482(3) of the FW Act.
37. The factual basis for the Applicants suspicion that the Employer has contravened s 482(3) of the FW Act is set out in the statement of Mr Matson accompanying this application.
38. In addition to relying on the statement of Mr Matson the [Mr Schmidt] also relies on his own discussions with AIA employees, consideration of documents from AIA employees and documents provided during the inspection on 27 November 2012.
39. The basis for the [Mr McMullin’s] suspicion of a contravention of s 482(3) is set out in his statement filed with this Amended Application.
Cl 10.6 and 10.2 of the Award and s 45 of the FW Act
40. On the basis of the matters set out in this application and the matters set out in the statement of Mr Matson accompanying this application the Applicants suspect that the Employer has breached cl 10.6 of the Award and therefore s 45 of the FW Act.
41. In addition to relying on the statement of Mr Matson the Second Applicant also relies on his own discussions with AIA employees, consideration of documents from AIA employees and documents provided during the inspection on 27 November 2012.
42. The basis for the Third Applicant’s suspicion of a contravention of s 45 of the FW Act is set out in his statement filed with this Amended Application.
Need for Records
43. The Applicants seek an order in the terms set out in the draft orders accompanying this application.
44. The documents specified in the Order are directly relevant to suspected contraventions of ss 45, 482(3) and/or 502(1) of the FW Act.
45. The Applicants seeks [sic] access to the electronic copies of the documents provided to the Applicants during the 27 November 2012 inspection to determine;
o Whether the originals/true copies of the documents subject of the Order were provided to the Applicant during the inspection; and
o Whether AIA has concealed, destroyed or altered documents that were the subject of the Order;
and therefore whether s 482(3) and/or s 502(1) of the FW Act have been contravened.
46. In addition, the Applicants seek an order in the terns set out in the draft order accompanying this application in relation to the suspected breach of cl 10.6 and 10.2(c) of the Award. The order is sought to remove any doubt that the Applicants are entitled to inspect electronic copies of the documents and records referred to in the Order.
47. The Applicants seek electronic copies of the documents in relation to a suspected breach of clause 10.6 and 10.2(c) of the Award (and therefore s 45 of the FW Act) in order to obtain records sufficient to show:
o Which teachers have taken extended leave (including maternity or long service leave of one school term or more) and the periods of such leave;
o Which teachers are or have been engaged on a fixed-term basis, the commencement and termination dates of each tern of engagement and the purported reason for each such engagement;
o Which teachers have ceased to be employed by the Employer at the two Coburg campuses, the dates of the cessation of employment and how each has been replaced;
o The identity of each newly appointed teacher and the position to which they were appointed.
The balance of the application dealt with the matter of why the permit-holders wished to have their application heard ex parte, and with their application for an exemption certificate under s 519 of the FW Act.
135 As is apparent from the grounds above, Messrs Matson and Schmidt supported their application with statements. In his statement, Mr Matson referred to the order made on 22 November 2012 and to his concerns as to the accuracy and completeness of the respondent’s compliance with requirements made pursuant to that order. He concluded his statement as follows:
On the basis of the information outlined above I have formed a suspicion that the AIA has not provided me with all the documents I have sought pursuant to the order of Fair Work Australia dated 22 November 2012.
I have formed the belief that the AIA have intentionally altered documents provided during the inspection. This belief is based on:
a. Inconsistencies in the letterhead;
b. Information provided to me by members of the IEU outlined above;
c. The two contracts that I have seen that were provided by employees of the AIA which are replacement contracts when the AIA has provided me with “Full time” contracts dated the same day; and
d. Other irregularities in the documents provided by AIA referred to above.
I believe that the conduct of the AIA referred to above, if proven, would amount to hindering or obstructing a permit holder or holders in contravention of s 502(1) of the FW Act.
I also consider that in not allowing inspection and copying of the actual contracts of AIA employees the subject of the FWA order of 22 November 2012 AIA have contravened s 482(3) of the FW Act.
In addition to the above, on the basis of the evidence I have already given in RE2012/2029 at [sic] attached to this statement as DM-2, the evidence of Mr Schmidt attached to this statement as DM-3 and the matters referred to above I continue to hold the belief that AIA have breached clause 10.6 of the Award by hiring employees on a fixed term basis other than in accordance with c 10.6 of the Award.
By reason of my belief that clause 10.6 of the Award has been breached I hold a reasonable suspicion that s 45 of the FW Act has been contravened.
Mr Schmidt’s statement added nothing of present relevance to Mr Matson’s, and does not need to be further considered here.
136 Additionally to Messrs Matson and Schmidt, on this occasion Mr McMullin, also applied for an order under s 483AA, and made a short statement in support of that application.
137 Save for what I have set out above, there was no evidence of the material, or submissions, put before FWA in support of the second application under s 483AA of the FW Act. Neither, apart from the order itself, and the certificate under s 519, is there any evidence of the Commissioner’s reasons for accepting the permit-holders’ applications, which she did.
138 On 13 December 2012, FWA certified as follows:
The Independent Education Union is exempted from the notice requirement set out in subsections 487(1), (2) and (3) of the Fair Work Act 2009 (the Act):
i. In relation to an entry made in accordance with section 481 of the Act;
ii. To the premises of the Australian International Academy of Education Inc. at Bakers Road, North Coburg in Victoria;
iii. On 17, 18 or 19 December 2012; and
iv. For the purposes of investigating the following suspected contraventions of the Fair Work Act 2009
• section 45 concerning a breach of clause 10.2 and 10.6 of the Educational Services (Teachers) Award 2010 …,
• section 482(3) concerning a contravention by an occupier; and
• section 502(1) the obstruction and hindrance of a permit holder.
139 Also on 13 December 2012, FWA made an order under s 483AA which was substantially in line with that made on 22 November 2012, but which contained an expanded form of para 3.a, as follows:
‘Records’ are any record of information (including electronic records of information however described or stored) and include:
i. anything on which there is writing; or
ii. anything on which there are marks, figures, symbols or perforations having meaning for persons qualified to interpret them;
iii. anything from which sounds, images or writing can be reproduced with or without the aid of anything else; or
iv. a map, plan, drawing or photograph.
Paragraph 4 of the order was expanded to refer also to “electronic versions of such records”, and a new subpara c) was introduced as follows:
Require AIA to allow them to access to [sic] any computer on which the Records are stored in order to facilitate the requirements in paragraphs 4(a) and 4(b) above ….
THE VALIDITY OF THE SECOND ORDER
140 Save in one respect, the respondents’ challenge to the validity of the s 483AA order made by FWA on 13 December 2012 followed the same lines as their like challenge to the order made on 22 November 2012. The point of difference was that the challenge to the second order also involved the proposition that it was beyond power for FWA to allow Messrs Matson and Schmidt to “access to any computer on which the Records are stored”. This ambitious submission must be rejected. A moment’s reflection will reveal what might have happened, in the circumstances of a possibly uncooperative employer, if FWA had gone no further than to “allow” Messrs Matson and Schmidt to “inspect” electronic records. Without proper access to the necessary computers, including provision of the means to open documents, a purely permissive order in these terms might have been largely ineffective. In its order, FWA expressed cl 4(c) of the order made on 13 December 2012 as a facilitative provision and, in my view, correctly so.
141 For those reasons, I reject the respondents’ challenge to the validity of the order made by FWA on 13 December 2012.
THE SECOND VISIT TO THE RESPONDENT’S PREMISES
142 At about 1:30 pm on 17 December 2012, Messrs Matson, Schmidt and McMullin attended the secondary campus. While they were speaking to the receptionist, the respondent’s senior financial manager, Fayzah Saleh, who happened to be passing, greeted them (she knew who Messrs Matson and Schmidt were). They showed her the FWA order and exemption certificate of 13 December 2012. The receptionist asked Mr Matson if he and his colleagues were expected, to which Mr Matson responded that they did not have an appointment. Mr Matson told Ms Saleh that they were there to inspect records on computers and files. Ms Saleh asked if Mr Salman had provided approval, to which Mr Matson responded that they did not have Mr Salman’s approval, but that there was an order from FWA for them to inspect the records that day. Ms Saleh asked them to take a seat in the reception area while she made some inquiries.
143 Ms Saleh arranged for Mr Galea to be paged, and he came to an office adjacent to the reception area and met with her there. She showed him the FWA documents. He asked her to telephone the respondent’s solicitors, while he would telephone Mr Salman, who was absent interstate at the time.
144 Ms Saleh did telephone the respondent’s solicitors, and spoke to David Coombes. At his request, she scanned the FWA order and certificate, and emailed them to him. A little later, Mr Coombes spoke to Ms Saleh again by phone. He told her that the respondent must let the applicant’s representatives into the premises, but that they could have access only to documents that were directly relevant to a suspected breach of the FW Act or the award. These were, it appeared, the hard copy documents and files that the applicant’s representatives had already seen, and of which they had been given copies, on 27 November 2012. Mr Coombes said that the representatives should not be given open access to the respondent’s computers as they had requested, because that might give them access to a range of irrelevant documents, including documents containing other people’s personal or private information. In a subsequent telephone call, Mr Coombes told Ms Saleh that he had spoken to Mr Salman about the FWA order and certificate, and had given him the same advice as he had given to Ms Saleh, namely, that the applicant’s representatives should be admitted to the premises, but that their inspection should be confined to hard copy documents that were directly relevant to the suspected breaches. Mr Coombes told Ms Saleh that Ms Salman agreed with that advice.
145 As mentioned above, while Ms Saleh was on the telephone to Mr Coombes, Mr Galea was on the telephone to Mr Salman. He explained what was happening at the respondent’s office, and read out the FWA documents to him. They discussed what they thought the documents meant. They discussed the fact that the documents did not name any employees, but seemed to suggest that the applicant’s representatives could have (as Mr Galea put it) “carte blanche” access to the respondent’s computers to obtain electronic copies of documents. Mr Salman expressed concerns about privacy and confidentiality issues that might arise in this context. According to Mr Galea, after this telephone conversation he spoke to Ms Saleh, who told him that Mr Coombes had advised that it was appropriate for the applicant’s representatives to be admitted to the premises, but that they should be confined to hard copy paper documents that were directly relevant to the suspected breaches. She said that access to the respondent’s computers was not to be permitted.
146 By the time that Mr Galea – and it was he who thereafter managed the matter on behalf of the respondent – spoke to the applicant’s representatives, it was about 2.30 pm. They had been waiting in the reception area for about the previous hour. Mr Galea told them that Mr Salman was in Perth. He requested clarification of the records the representatives wished to access, adding that he would not be able to do anything without permission from Mr Salman. Mr Matson said that they wanted access to all hard copy and electronic copies of contracts of employment and employment documents. Mr Galea could not recall Mr Matson using the term “employment documents”. This apparently minor difference may be of some importance, for reasons which will become clear. As it happens, Mr Schmidt took a recording of this conversation, using his mobile phone. A transcription of that recording was placed into evidence by the respondents. It shows that, at this stage of the conversation, Mr Matson said, “it’s really primarily we are looking for contracts of employment and documents in both hard and electronic form.” The following exchange then occurred:
Galea: We’ve given you the hard ones, right?
Matson: Yes, but there’s problems, so we were unable to ….
Galea: So you want the soft copies of those same hard copy records?
Matson: Yes, so we want to look at the files and verify that those documents are the ones that we were shown, and we also want to have a look at the electronic copies.
Another member of the respondent’s staff appears to have made a contribution at this point. The exchange between Messrs Matson and Galea then proceeded as follows:
Galea: Do you want me to bring the files out?
Matson: Well, what we saw there were some problems with, so we wanted to have a look through again, and to have a look at some other contracts of employment. So basically contracts of employment.
Mr Galea said that the respondent did not want to “do anything” until he had heard back from Mr Salman and the lawyers.
147 Mr Matson said that he understood that Mr Galea might have concerns, but pointed out that hindering an inspection was an offence which carried a serious penalty. Mr Galea’s response was that he was not hindering the inspection, he was just waiting for legal advice. He asked whether Mr Matson wanted to use the available time to look at the hard copy documents. Mr Matson accepted that suggestion, saying that he and his colleagues could “look at the files where they are … and find the contracts in there while we wait”. Apparently “in there” was what Mr Galea referred to as the “inner office”, where he did not want the permit-holders to be working. But he suggested that one of them could accompany him into that office, and he would give him the files for him to bring out. Mr Matson’s response was that two of them would go into the inner office and “go through those files.” Mr Galea requested him to bring the files out to the area where they were then talking, rather than look at them in the inner office, adding, “I think that’s a reasonable request.” Mr Matson said that, depending on what they saw “in there … that could be a problem.”
148 Mr Galea said that all the names were listed, adding, “if you’ve got another name that we didn’t include on that list amongst the people that are identified here, tell us. You can have it, we are not trying to stop you looking at these files.” Mr Matson said that no specific individuals were identified – “we just need to go through all of those contracts.” Mr Galea said that they could do that, and instructed Ms El-Leissy to allow the permit-holders “to have a look at the paperwork”, but that they had to “bring them out here”. There followed a period when Mr Galea was absent – apparently talking on the telephone. Mr Matson told Ms Saleh that, on the last occasion, all they looked at was a sample, but now they needed to “go through them all”. Ms Saleh then accompanied Messrs Matson and Schmidt into her office (Mr McMullin waiting outside). To this point, there is nothing to suggest that the respondent was standing in the way of Messrs Matson and Schmidt having access to any hard copy document which they required, or, for that matter, perusing hard copy employment contracts for all teachers.
149 While Messrs Matson and Schmidt were working in Ms Saleh’s office, Mr Galea returned. He said that Mr Salman had spoken to the respondent’s lawyer, who had said that the permit-holders could have access to the files of the same people that were on the previous list (that is, I presume, one of the lists which had been used on 27 November 2012). Mr Matson said that that was not satisfactory. He wanted the files that related to everyone employed on a fixed-term basis. Mr Galea said that the previous list contained the names of all the teachers who were so employed. Mr Matson said that that was not satisfactory, because a number of the fixed-term teachers were not identified on that list. Mr Galea’s response was to invite Mr Matson to provide the name of any teacher, and they would “verify” it. But Mr Matson made it clear that he wanted to see “the entire files.” Mr Galea would not permit that, adding, “Well that’s fishing, because we are just required to, and I’ve been authorised by Mr Salman, according to the lawyer’s instructions, that we only have to supply these records.”
150 Faced with this apparently firm position adopted by Mr Galea, Mr Matson said that they would “start with” the files on the list, adding, “let’s go and see those files now.” Mr Galea suggested that Messrs Matson and Schmidt wait in “the other room”, but Mr Matson said that he wanted to see where the files were kept. After some inconsequential exchange involving Ms Saleh and, possibly, Ms El-Leissy, Mr Galea said that he was uncomfortable about Messrs Matson and Schmidt coming into the office, because that was not what Mr Salman had instructed. He said, “I’m just doing what I’m told.” He told Mr Matson that, if he wanted to have a fight about it, he could do so with Mr Salman. Mr Matson’s response was that he was not in a position to argue with Mr Salman, because he was not there, “but obviously the hindrance of an inspection like this is a serious matter and it carries a penalty”. Mr Galea reiterated that he was just following instructions and that he was ready to comply with “this” (presumably the FWA order) by supplying the required files, adding that the order did not say anything about “going into somebody’s office and finding the records yourself.”
151 It being clear that Mr Galea would not go beyond the files for teachers mentioned on the previous list, or for teachers nominated by the permit-holders, Mr Matson asked for a staff list, from which he and Mr Schmidt might identify the teachers whose files they wanted. Ms Saleh provided four staff lists to Messrs Matson and Schmidt, who spent some time marking the lists to indicate the teachers who, they suspected, may have been on fixed-term contracts.
152 At some point, Mr Matson asked Mr Galea what was going to be done about the computers. Mr Galea responded that he had been instructed by Mr Salman, who had been talking to the lawyer, to supply the files only. Mr Matson said:
Just to be absolutely clear, because you do realise we are going to prosecute? It’s clearly a breach. We’ve got orders, you’ve seen the orders. The orders give us access to look at your files, and you’re saying you are not going to provide that?
Mr Galea said that he was “caught in the middle” and would confirm his instructions. Mr Matson told Mr Galea that Mr Salman needed to be aware that if he refused to give them access to the computer records, the applicant intended to prosecute. In his evidence, Mr Galea explained the position in which he found himself as follows:
[O]n the one hand, I had advice and instructions from the Academy’s lawyers and my direct superior, not to allow the Union representatives access to the Academy’s computers, and on the other hand, Mr Matson was saying that the Academy would clearly be liable to big fines for doing this. I had no experience with these matters, and was not sure who was right.
153 After making another telephone call, Mr Galea confirmed that his instructions from Mr Salman were that the applicant’s representatives were not to be given access to the computers. He said that he had told Mr Salman that Mr Matson had said that the applicant intended to prosecute, and that there could be penalties.
154 At Mr Galea’s insistence, Messrs Matson and Schmidt returned to the foyer area of the office, where they were provided with hard copy files relevant to teachers whom they identified. Copies of documents were provided on their request.
155 One of the files inspected by Messrs Matson and Schmidt was that which related to Ms Chaarani. This was one of the files which they had inspected on 27 November 2012, and I have referred to it above. According to Mr Matson, the file now (ie on 17 December 2012) contained a copy of a confirmation letter addressed to her dated 22 October 2012. Mr Matson said (in his evidence) that this letter had not been on the file when he had perused it on 27 November 2015. There is a factual issue here which will be resolved presently.
156 Another of the files provided to Messrs Matson and Schmidt on 17 December 2012 and inspected by them was that which related to Ms Badawi. That file had not been requested on 27 November 2012. It contained two appointment letters: one in relation to a position on the non-teaching staff for the school year 2010, and one – that is presently of interest – also in respect of the 2010 school year, for duty, commencing on 17 May 2010, which gave “Full time” as her tenure and which Ms Badawi signed on 18 June 2010.
157 At about 4:00 pm on 17 December 2012, Messrs Matson, Schmidt and McMullin left the secondary campus.
THE CONTRACTUAL DOCUMENTS ALLEGEDLY NOT PRODUCED
158 The applicants allege that some documents which formed part of the contracts of the teachers concerned were not produced at all:
in respect of Ms Awari, the confirmation letter of 14 November 2012;
in respect of Ms Borova, the extension letter of 4 November 2011 and the confirmation letter of 14 November 2012;
in respect of Ms Sheehan, the extension letter of 4 November 2011 and the confirmation letter of 14 November 2012;
in respect of Ms Daniel, the confirmation letter of 22 October 2012;
in respect of Ms Onder, the extension letter of 4 November 2011; and
in respect of Ms Chaarani, the confirmation letter of 22 October 2012.
159 Commencing with the letter of 22 October 2012 addressed to Ms Daniel, in his evidence Mr Matson said that he saw it on Ms Daniel’s personnel files on 17 December 2012, but that it had not been there on 27 November 2012. Mr Boyaci, who had been gathering the documents required by Messrs Matson and Schmidt on 27 November 2012, said that the letter had been on Ms Daniel’s file on that day, and it was included in the bundle of photocopies of the documents of which copies had been provided to those permit-holders on that day. Under cross-examination, however, it became clear that Mr Boyaci just copied whatever was in the file, and had no actual recollection of what had been there. By contrast, when tested under cross-examination, Mr Matson’s recollection that the letter was not present on the file on 27 November 2012 was firm and positive. On this state of things, I find that the letter was not produced to Messrs Matson and Schmidt on 27 November 2012.
160 Nothing turns on that finding. By reason of the inference which is recorded in para 64 above, the letter of 22 October 2012 addressed to Ms Daniel was of no contractual significance. It did not, therefore, fall within the class of records and documents of which Messrs Matson and Schmidt required inspection and copying on 27 November 2012.
161 The letter to Ms Chaarani dated 22 October 2012 falls into the same category as the like letter to Ms Daniel, save in one significant respect: on Ms Chaarani’s own evidence, it was received by her. Therefore, although operative only from the start of 2013, as at 27 November 2012 it was an element in the respondent’s documentary record of Ms Chaarani’s contract of employment. Messrs Matson and Boyaci gave the same evidence about this letter as they did with respect to the letter to Ms Daniel. As with that letter, here too I find that the letter was not produced to Messrs Matson and Schmidt on 27 November 2012.
162 It is admitted by the respondents that none of the other letters referred to in the list above was produced to Messrs Matson and Schmidt on 27 November (or, for that matter, on 17 December) 2012.
163 In their closing submissions, the respondents accepted that it was fairly to be inferred that the letters concerning Ms Borova (both of them), Ms Daniel and Ms Chaarani, and the letter of 14 November 2012 concerning Ms Sheehan, were on the premises at the secondary campus on 27 November 2012. The respondents did not make the same concession about the other three letters – two dated 4 November 2011 (to Ms Sheehan and Ms Onder) and that dated 14 November 2012 to Ms Awari.
164 It seems clear that all eight of these letters were missing from the personnel files of the teachers concerned when those files were shown to Messrs Matson and Schmidt on 27 November 2012. The respondent accepts that it would normally be expected that its copy of correspondence of this kind would be kept on the personnel files. Mr Salman’s explanation for how it came to be that the letter to Ms Borova dated 4 November 2011 was found, such that the respondent now accepts that it was at the secondary campus on 27 November 2012, may provide a key to understanding what became of the three letters as to which there is no direct evidence. In his affidavit, he said that he had, for the purposes of this proceeding, “come across in Ms El-Leissy’s office on her shelving (ie not yet filed in personnel files), a bundle of letters of this type (or of a similar type), including the two letters returned under subpoena by Ms Borova”. When pressed under cross-examination on the whereabouts of the letter to Ms Borova dated 4 November 2011, Ms El-Leissy said that she had been on a pilgrimage in Saudi Arabia “for at least a month” at that time, and added, “as you can imagine, for a month away, there would be a pile of work to be done and teachers to look after and personnel matters, of course.”
165 The three letters referred to obviously existed at the times when they were dated and signed by Mr Salman. The respondent’s practice was to keep a hard copy of correspondence of this kind on the personnel files of the teachers concerned. But, it seems, there were circumstances where Ms El-Leissy fell behind in her filing. That was her own explanation for the absence of one of these letters from the appropriate personnel file. Consistently with that, Mr Salman found that and another letter on a shelf in Ms El-Leissy’s office. Faced with a choice between the missing letters having been thrown out or otherwise simply lost and those letters having been overlooked, I am satisfied, in the light of the evidence to which I have referred, that the latter was the more likely course of events.
166 I find, therefore, that, on 27 November 2012, the confirmation letter of 14 November 2012 to Ms Awari, the extension letter of 4 November 2011 to Ms Sheehan and the extension letter of 4 November 2011 to Ms Onder were present in the respondent’s office at the secondary campus. That remained the situation on 17 December 2012.
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.
THE APPLICANTS’ CASE UNDER S 482(3) OF THE FW ACT
301 It is established that, on 27 November 2012, Messrs Matson and Schmidt required the respondent to allow them to inspect the contracts of employment of the teachers referred to in para 130 above. For reasons which are not apparent, the applicants’ case under s 482(3) in relation to 27 November 2012 does not include Ms Chaarani’s contract, which leaves nine teachers whose contracts were required for inspection and copying under s 482(1)(c). The applicants submit that, insofar as the documents produced did not reflect what were then the true contracts of the teachers concerned, those requirements were not complied with. Subject to the specific arguments advanced on behalf of the respondents to which I refer below, I accept that submission. I also accept the further submission advanced on behalf of the applicants that the extension letters and confirmation letters referred to in paras 158-159 and 161-166 above were contractual, and should have been produced in response to the permit-holders’ requirement. They were not.
302 The respondents argued first that s 482(1)(c)(i) is concerned only with records and documents which are in fact kept on the premises entered by the permit-holder. Whether or not the document which contains the terms of a teacher’s contract was altered or manipulated, even with a view to making things appear as they should not, under this provision the employer or occupier was under no obligation other than to produce the documents which existed on the premises at the time. At the conceptual level, I accept that submission.
303 In the context of the facts of the present case, however, I reject the submission. The question is whether the records and documents which constituted the contracts of the teachers referred to in para 130 above were on the premises at the secondary campus on 27 November 2012. The physical separation of the front pages of these contracts from their other pages would not conclude that question in the negative. If the relevant front pages remained on the premises, the position would be that the records and documents which constituted the contracts were still kept on the premises. The resolution of this issue of fact commences with the circumstances that the true front pages were on the premises on the morning of 23 November 2012. From there, it was, in my view, the respondents who bore the evidentiary onus of proving that those front pages were no longer on the premises four days later (or two business days only). Although they fiercely resisted the applicants’ case that Ms El-Leissy had replaced the front pages on these documents, the respondents have known for a long time that that was the case which the applicants proposed to run. It was not enough, in my view, for the respondents to content themselves with Ms El-Leissy’s evidence that the old front page would usually be discarded. Ms El-Leissy did not say when it would be discarded. The respondents called no evidence about the timing or detail of such waste disposal, or recycling, practices as it had in its office at the secondary campus in November 2012. This was an area of the evidence to which the applicants could make no contribution. The respondents may not have been able to establish that one course or another was definitely followed, but they have chosen not to call any evidence from which the court might have been able to make an informed assessment of the probabilities.
304 I find, therefore, that the old front pages of these contracts were kept on the premises at the secondary campus when Messrs Matson and Schmidt made their requirements under s 482(1)(c) on 27 November 2012. I accept the applicants’ case that the documents which these permit-holders required the respondent to allow them to inspect and to copy were on the premises at the secondary campus.
305 The respondents next argue that the right of entry under s 481(1) is confined to premises upon which the presumptive member to whom the suspected contravention relates, or whom it affects, “performs work”. They then say that the rights given by s 482(1) may be exercised by the permit-holder only “while on the premises”, namely, the premises upon which the member performs work. They say that there were and are two geographically and functionally distinct campuses. Primary teachers in the employ of the respondent did not perform work at the secondary campus within the meaning of s 481(1)(b). They led evidence, which was not challenged by the applicants, that there was no crossover, in the performance of teaching duties, for teachers in the primary and secondary campuses: a teacher employed at one campus taught there only, and did not undertake teaching at the other. It followed, the respondents submitted, that the contract of a primary teacher could never be relevant, much less “directly relevant”, to any suspicion held by Messrs Matson and Schmidt that a particular secondary teacher was being employed on a fixed-term basis beyond the scope permitted by cl 10.6.
306 Within the framework which I laid out in para 118 above, the respondents start with the premise that teacher A must perform work on the premises entered: s 481(1)(b). Conceptually, teacher C need not (it not being C in relation to whom the contravention was suspected). But, on the facts of the case, unless C were a secondary teacher, it could never be the same teacher – B – whom both A and C replaced. If A were a secondary teacher – as he or she had to be, due to the requirement of performing work on the secondary campus – then B would likewise have to be a secondary teacher, and could never be replaced by someone who was not also a secondary teacher. Thus C too had to be a secondary teacher. It follows, according to the respondents, that, on 27 November 2012, Messrs Matson and Schmidt had no right to require the respondent to allow them to inspect the employment contract of any primary teacher.
307 On the premises (1) that the teacher in relation to whom the permit-holders’ suspicions existed had to be a secondary teacher, and (2) that there was no crossover in the performance of teaching duties as between the primary campus and the secondary campus, it seems to me that this argument advanced on behalf of the respondents must be accepted. The requirement of direct relevance in s 482(1)(c) is an objective one, it not being sufficient that the permit-holder, in the conduct of his or her investigation, believed that a particular record or document would or might be directly relevant. Put another way, in a proceeding for contravention such as the present one, it will always be open to a respondent to defend its refusal to allow inspection or copying of a particular record or document on the ground that it was not, objectively, directly relevant to the suspected contravention.
308 But the first of the premises referred to in the previous paragraph was challenged by the applicants. In point of fact, Messrs Matson and Schmidt suspected that the respondent was contravening cl 10.6 of the award in respects which related to, or affected, both primary and secondary teachers. The applicants reject the respondents’ proposition that, on the facts of the present case, primary teachers, including those in relation to whom the suspicions of the permit-holders were held, did not perform work at the premises where the records and documents were kept. They put this in two ways.
309 They said first that the school operated by the respondent was a single entity, such that the primary and secondary campuses were to be regarded as a single premises. It was submitted that the definition of “premises” in s 12 of the FW Act, whereby the term includes “any land, building, structure, mine, mine working, aircraft, ship, vessel, vehicle or place”, was a broad, inclusive one, and that “the different campuses of the school operated by the first respondent form part of the school’s premises”. I agree that the definition is an inclusive one, but I do not agree that the term, either in its ordinary meaning or as inclusively defined, would treat as a single premises two suburban locations about 1.5 km apart on separate landholdings.
310 Secondly, the applicants submitted that primary teachers employed by the respondent did perform work at the secondary campus. For that submission, the applicants relied on essentially uncontested evidence given by a number of primary teachers that, once or twice a term, they were required to attend meetings of the teaching staff of the whole school at the secondary campus. The respondents’ response to this was not to take issue with that evidence, but to contend that a practice of this kind would not be sufficient to warrant the conclusion that the teachers concerned performed work at the secondary campus within the meaning of s 481(1)(b) of the FW Act.
311 As a matter of construction, “performs work” cannot be limited to a situation in which the employee of interest is physically present and performing work at the time of the permit-holder’s entry. The section must extend to a situation in which the employee is off-shift that day, absent on leave, or on temporary assignment to a department located elsewhere, for example. There are some employees who, because of the nature of their jobs, work in different premises from day to day: a maintenance carpenter employed on the staff of a company with numerous retail outlets, for example. On the other hand, one must be careful to avoid collapsing the distinction between s 481 and s 708: under the former, it is obviously not enough that there are, on the premises, records or documents that are relevant to compliance purposes.
312 In my view, if, under the terms of his or her employment, an employee may be required to work at particular premises, he or she should be regarded as performing work on those premises, whether or not he or she is physically present there at the time of the permit-holder’s entry. Counsel for the respondents resisted any such construction of s 481, citing the example of a major bank, any one of whose branches, which may number in the thousands, a permit-holder would have a right to enter if the construction were correct. For myself, however, I cannot see any violence being done to the apparent purpose of Subdiv A if s 481 were construed to cover a situation in which the employee of interest could be required to work on premises on which the permit-holder had grounds to exercise the rights referred to in s 482.
313 I would hold therefore, that, whilst Messrs Matson and Schmidt were present at the secondary campus on 27 November 2012, the documents of which they were entitled to require inspection were not confined to documents which related to secondary teachers.
314 For the reasons given above, I hold that, on 27 November 2012, the respondent contravened the requirements of Messrs Matson and Schmidt to allow them to inspect and to copy the contracts of Ms Borova, Ms Onder, Ms Cansiz, Ms Sheehan, Ms Ahmed, Ms Awari, Ms Oz and Ms Daniel. By so doing, the respondent contravened s 482(3) of the FW Act. This holding does not extend to Ms Alshakshir’s contract because I am not satisfied that the document produced on 27 November 2012 was not genuine. It does not extend to Ms Chaarani’s contract because that contract was not part of the applicants’ case in relation to this occasion.
315 Turning next to the second inspection visit to the secondary campus by Messrs Matson, Schmidt and McMullin on 17 December 2012, it is established that, on that date, these permit-holders required the respondent to allow them to inspect the contracts of employment of Ms Chaarani and Ms Badawi. Save as specifically mentioned hereunder, the parties made the same submissions in this area of the case as they had in relation to the first order and the first inspection. Likewise, the various findings and rulings set out above are, subject to what follows, repeated.
316 In relation to the contracts of Ms Chaarani and Ms Badawi, the situation which arose on 17 December 2012 differed from that which had arisen on 27 November 2012 in one significant respect: it was about three weeks after the day on which Ms El-Leissy replaced the front pages of those contracts. As a result, the pragmatic considerations by reference to which I found that the original front pages of the contracts of the original nine teachers were still “kept on the premises” when Messrs Matson and Schmidt undertook their first inspection are less persuasive when applied to an occasion about three weeks later. As will already be apparent, however, I take the view that it was for the respondents to establish that these front pages, which I have held were kept on the premises on 23 November 2012, were no longer so on 17 December 2012. It has not done so.
317 For the reasons given above, I hold that, on 17 December 2012, the respondent contravened the requirements of Messrs Matson, Schmidt and McMullin to allow them to inspect and to copy the contracts of Ms Chaarani and Ms Badawi. By so doing, the respondent contravened s 482(3) of the FW Act.
318 The bigger issue with respect to the visit of Messrs Matson, Schmidt and McMullin to the secondary campus on 17 December 2012 is whether the respondent contravened s 482(3) by its refusal to allow them access to records and documents held in electronic form. The first question is, what did they require? I would not regard Mr Matson’s statement to Ms Saleh (see para 142 above) that he and Mr Schmidt were there to inspect records on computers and files as a requirement. It was no more than a general statement of purpose made, no doubt, so that Ms Saleh might direct the permit-holders to the appropriate responsible officer of the respondent. There followed a lengthy interregnum, during which Mr Galea at least apprehended that a requirement would be made. Eventually, when he spoke to Messrs Matson and Schmidt, Mr Matson told him that he and Mr Schmidt wanted to access all hard copy and electronic copies of contracts of employment and employment documents.
319 It was submitted on behalf of the respondent that a requirement in these terms went beyond the scope of s 482(1)(c) in that it was not limited to electronic documents that were directly relevant to the contravention of cl 10.6 of the award that the permit-holders suspected. Even had those suspicions been the same as were entertained by Messrs Matson and Schmidt on 27 November 2012, I would hold that they provided a basis for them to inspect the contracts of all teachers. It must be remembered that the notion of “relevance” in s 482 is not the kind of relevance against which the admissibility of a document in a court proceeding, for instance, is measured. Under Subdiv A, the context is that of an investigation, not of litigation. It is presumed that the investigator’s knowledge, rising no higher than a suspicion as it does, is imperfect. Messrs Matson and Schmidt were in no position to say which contracts would demonstrate the occurrence of a contravention of cl 10.6. To find this out was the point of their visit to the secondary campus. On the information which they had, including the unsatisfactory response which the respondent had made to their requirements on 27 November 2012, it appeared that, at both campuses, there were fixed-term teachers whose engagements did not correspond with the absences of other teachers on leave etc, but they did not know who they were. The requirement which they made on 17 December 2012 was, in my view, amply justified as a necessary step in their investigation; and the records and documents which they sought to inspect were directly relevant to their suspicions of contravention.
320 But, on 17 December 2012, Messrs Matson and Schmidt had another line of suspicion which enlivened their right to make requirements under s 482(1)(c): they suspected contraventions of s 502(1) of the FW Act, constituted by the wholesale manipulation of the written form of contracts of employment held on the files of the respondent. Although the respondent’s evidence in this case has cast a more benign light on to the matter of the use, before October 2011, of the new logo on its letterhead, that was not known to Messrs Matson and Schmidt in December 2012. That matter, and the inconsistency of the terms of the appointment letters produced by the respondent on 27 November 2012 with the terms of corresponding letters available to them, provided reasonable, if not strong, grounds for a suspicion that the file copies of teachers’ contracts held by the respondent had been altered with a view to frustrating the permit-holders’ investigation. Once the hares were running on this issue, as it were, there was no point, short of examining the electronic forms of all contracts of employment, where it could be said that artefacts of this kind were not directly relevant to the suspicions which the permit-holders entertained.
321 Thus I hold that the requirement for contracts in electronic form to be produced made by Messrs Matson, Schmidt and McMullin on 17 December 2012 was authorised by s 482(1)(c) of the FW Act. On any view, that requirement was not complied with. It follows that, on that occasion, the respondent contravened s 482(3) of the FW Act.
THE APPLICANTS’ CASE UNDER s 502 OF THE FW ACT
322 Under s 502(1) of the FW Act, the applicants submit that, on 23 November 2012, the respondent altered the records of the contracts of Ms Alshakshir, Ms Awari, Ms Ahmed, Ms Onder, Ms Borova, Ms Cansiz, Ms Sheehan, Ms Oz and Ms Daniel after Messrs Matson and Schmidt sought to inspect those contracts, thereby intentionally hindering or obstructing those permit-holders exercising rights in accordance with Part 3-4 of the FW Act. No allegation is made under s 502 against the individual respondents in relation to that day, or to 27 November 2012. Save for the contract of Ms Alshakshir, I have found that Ms El-Leissy, on the instruction of Mr Salman, did alter the records of these contracts on 23 November 2012. That act was, self-evidently, the act of the respondent; and it is equally clear that, on the findings set out above, it was an intentional one. Subject to what follows below, the respondents accepted that, if I should make findings of fact along these lines, there would have been a contravention of s 502 on the part of the respondent.
323 But the respondent made two contentions as to why these findings did not produce the result that it was relevantly in breach of s 502. The first concerned subs (3). It was said that the notice under s 487 had been given at 9:30 am on 23 November 2012, by which time Ms El-Leissy had altered all of the presently relevant contracts except those which related to Ms Onder and Ms Sheehan. So far as the printing and saving of the relevant Word files is concerned, that may be accepted. But, in the absence of any evidentiary assistance from the respondent in this department of the case, I would not be prepared to find that Ms El-Leissy had, by 9.30 am, completed her task of re-collating, stapling and filing all, or any, of the other appointment letters. In fact, I consider it more likely that she had not. In the context of a civil remedy provision such as s 502(1), I take the view that Ms El-Leissy was engaged on a single course of conduct, some of the activities in which overlapped with the period when subs (3) would have operation (in which I include, of course, the actual alterations of the contracts of Ms Oz and Ms Sheehan).
324 It is also clear from the opening words of s 502(3) that the terms of that subsection are not limiting apropos the operation of subs (1). Whether or not the respondent had received the permit-holders’ notices under s 487, it was in what appears to have been the unusual situation of knowing that the permit-holders would be arriving, and of knowing the nature of the documents of which inspection would be sought. That knowledge was, of course, a critical ingredient in the finding I have made that the respondent acted intentionally when Mr Salman instructed Ms El-Leissy to alter the appointment letters, and when she followed that instruction. I would hold that the respondent’s actions on the morning of 23 November 2012 amounted to hindrance and obstruction within the meaning of s 502(1), without taking any account of subs (3).
325 The other contention made by the respondent under s 502 is that, relevantly to the respects in which Mr Salman and Ms El-Leissy did hinder and obstruct, Messrs Matson and Schmidt were not exercising rights in accordance with Pt 3-4. Conformably with the conclusions which I have reached under Subdiv A, that contention must be rejected.
326 In the result, insofar as the applicants’ case under s 502 relates to the entry of Messrs Matson and Schmidt on 27 November 2012, that case must be upheld.
327 The applicants next submit that, on 17 December 2012, the respondent and Mr Galea contravened s 502(1) by refusing to permit Messrs Matson, Schmidt and McMullin to inspect the electronic form of documents and records held on the respondent’s computers, and that the respondent and Mr Salman contravened this provision when he instructed Mr Galea to that effect. It is uncontroversial that Mr Salman did give such an instruction and did so intentionally. Subject to two submissions which they made, I do not understand it to be suggested by the respondents that the respondent, Mr Salman and Mr Galea did not thereby hinder and obstruct the permit-holders in exercising that entitlement. Those submissions were, first, that Mr Salman and Mr Galea, and therefore the respondent, did not intend to hinder and to obstruct the permit-holders in the exercise of their rights under Pt 3-4 and, secondly, that, because the FWA order of 13 December 2012 was invalid, there were in fact no such rights.
328 On the matter of intention, the respondents relied on passages in Mr Salman’s affidavit to the effect that he did not believe or understand that the FWA order obliged the respondent to allow the permit-holders the access to the electronic form of the documents which they sought. He believed that he was acting lawfully because he had been given legal advice not to allow the permit-holders to have general access to the respondent’s computers to inspect electronic records, and that to do so involved risks to the respondent in terms of disclosing irrelevant private and confidential information. Mr Galea’s evidence-in-chief on this aspect was almost identical to that of Mr Salman.
329 I do not accept this defence. On any view, the actions of Messrs Salman and Galea on 17 December 2012 were intentional: they intentionally stood in the way of Messrs Matson, Schmidt and McMullin inspecting appointment letters and other contractual documents held on the secondary campus in an electronic form. They believed that their actions were lawful, but that raises a different dimension of the problem, one that might be relevant on a plea, for example.
330 As to whether the permit-holders were exercising rights in accordance with Pt 3-4, it follows from my reasons above that they were. Insofar as the applicants’ case under s 502 relates to the entry of Messrs Matson, Schmidt and McMullin on 17 December 2012, that case must be upheld.
DISPOSITION OF THE PROCEEDING
331 I shall hear the parties with respect to the orders proper to be made in light of the findings of contraventions of ss 45, 482(3) and 502(1) of the FW Act which I have made in these reasons.
I certify that the preceding three hundred and thirty-one (331) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. |
