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[2019] QCAT 26
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2019-02-11
Original judgment source is linked above.
36 months (from the date of the respondent's original suspension on 14 December 2016).
Should after the expiry of the prohibition period, the Respondent apply for registration or permission to teach, that application must include an independent psychological report satisfactory to the Queensland College of Teachers ('QCT') addressing the following:
(a) An assessment of the Respondent's appreciation of the following:
(i) Differentiating between personal and professional relationships;
(ii) The legal obligations of teachers and tutors;
(iii) Development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students;
(iv) Risk assessment and early issue identification of potentially problematic situations and venues as well as initiating realistic solutions for avoiding the risk of harm to students;
(v) The extent and nature of the student, colleague, parent and community trust inherently invested in a teacher;
(vi) Personal and social behaviour that would compromise the professional standing of a teacher and the profession of teaching;
(vii) The effect of inappropriate relationships with students;
(viii) The trust and power granted to a teacher;
(b) The importance of full adherence to the Queensland College of Teachers Code of Ethics.
(c) An indication from the psychologist about whether the psychologist is satisfied that the respondent has adequately understood and addressed the above points.
(d) The status of the respondent's current mental health including details of any therapy undertaken since the date of the disciplinary decision.
(e) Confirmation that the psychologist was provided with copies of
(i) The Tribunal's disciplinary decision;
(ii) The QCT referral under section 97 of the Act.
4. Publication of any information which may identify the students and the school referred to in these Reasons is prohibited.
CATCHWORDS: EDUCATION - SCHOOLS - GOVERNMENT
SCHOOLS - TEACHERS' EMPLOYMENT AND CONDITIONS OF SERVICE - DISCIPLINARY MATTERS
Education (Queensland College of Teachers) Act 2005 (Qld), s 92, s 97
Queensland College of Teachers v Chambers [2012] QCAT 491
Queensland College of Teachers v Plumbley [2017] QCAT 474
Queensland College of Teachers v Rudd [2011] QCAT 367
REPRESENTATION:
Applicant: Self-represented
Respondent: Self-represented APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the
Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[1] This matter arises from a mandatory referral in relation to Mr Lobo by the Queensland College of Teachers to the Tribunal under sections 92(1)(h) and 97 of the Education (Queensland College of Teachers) Act 2005 (Qld) ('the Act').
[2] The Act1 requires that if the College reasonably believes that one or more grounds for disciplinary action against a 'relevant teacher' exist, then the College must refer the matter to a disciplinary body. The relevant body in this case is the Queensland Civil and Administrative Tribunal.2
[3] The College is required to inform the Tribunal about the grounds for the disciplinary matter and the facts and circumstances forming the basis for those grounds.3
1 Education (Queensland College of Teachers) Act 2005 (Qld) ('the Act'), s 97(1).
2 Ibid s 97(2)(a).
3 Ibid s 97(4)(a).
[4] The Tribunal is then required to conduct a hearing and make a decision about whether a ground for disciplinary action against the teacher has been established. The Tribunal is to make its decision based on the information provided to it by the College.4
[5] The issues to be determined by the Tribunal are:
(a) whether a ground for disciplinary action has been established; and, if so
(b) the appropriate sanction to be applied.
[6] The referral of this matter to the Tribunal was made on 2 January 2018. The relevant ground for taking disciplinary action was identified as s 92(1)(h) of the Act (as amended) which provides that a ground disciplinary action exists if:
(h) the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher;
[7] In an Agreed Statement of Facts filed in the Tribunal on 25 May 2018, the parties agreed that the ground for disciplinary action under s 92(1)(h) of the Act was established on the basis that whilst employed as a teacher at a school on a short-term contract during 2016, Mr Lobo behaved in a way that falls below the standard of behaviour generally expected of a teacher.
[8] Conduct that falls short of the standard of behaviour generally expected of a teacher may not necessarily result in a finding that a teacher is unfit to teach. The subsection covers low-end behaviour (for example, that may warrant a reprimand) through to significant misconduct (for example, that may lead to suspension or cancellation of a teacher's registration).5
[9] The Agreed Statement of Facts provides as follows:
Mr Lobo is a relevant teacher under the Education (Queensland College of Teachers) Act 2005. He was first registered as a teacher on 1 February 2010 and holds full teacher registration. His current registration end date is 1 February 2020.
The ground for disciplinary action under section 92(1)(h) of the Act was established on the basis that the respondent whilst employed as a teacher at the school on a short-term contract behaved in a way that falls below the standard of behaviour generally expected of a teacher as outlined in paragraphs 3-7 of the document.
During 2016, Mr Lobo whilst engaged at the school spoke inappropriately to Year 7 female students about menstruation including:
4 Ibid s 97(4)(b).
5 Explanatory Notes, Education and Other Legislation Amendment Bill 2016 (Qld), Clause 51.
Mr Lobo inappropriately gave Year 7 students prizes and/or gifts including:
Mr Lobo engaged in over familiar and/or inappropriate conduct with female year 7 students including:
Following the cessation of his employment at the school, Mr Lobo whilst a registered teacher, engaged in over familiar/inappropriate electronic communication with Year 7 student NU including:
Following the cessation of his employment at the School Mr Lobo inappropriately communicated with female student/s words to the effect of "I am missing you all".
[10] The parties also agreed to make separate submissions with respect to the appropriate disciplinary sanction that should be imposed.
Has the disciplinary ground set out in section 92(1)(h) been established?
[11] Despite the parties agreeing that the disciplinary ground has been established, the Tribunal must be satisfied on its own assessment of the facts and circumstances that a disciplinary ground exists.
[12] The standard of proof in a disciplinary matter is 'on the balance of probabilities' according to the gravity of the facts to be proved.6
[13] On 15 February 2018, Mr Lobo provided a document titled 'Response to Allegations' in which he sought to clarify his version of the matters raised in these proceedings. In the document he acknowledges that he 'did mention to the girls separately that if they need to go to the toilet after coming in from lunch or recess due to "women's issues" that would be fine'. He argued that the purpose of his conversation was to let the girls know that the class rule about unnecessarily going to the toilet did not apply to them if they needed to go.
[14] Mr Lobo readily admitted that he did award certain students prizes for efforts in class. He claimed that it was meant to be a positive tool to encourage positive behaviour in class.
[15] Mr Lobo also acknowledged the various multi-media contacts that he had with students. He concluded by stating that '[a]fter a while I realised that, just maybe, this wasn't an appropriate action for a teacher and shut down the email.'7
[16] Mr Lobo signed the Agreed Statement of Facts around 25 May 2018. On 17 June 2018, he wrote to the Tribunal and stated that he was fully aware of why his teacher's registration was suspended and apologised for his behavior. He claimed that he had reflected on his behavior and had sought help 'to better go about how [he] can work as a more professional and effective educator'.
6 Briginshaw v Briginshaw [1938] HCA 34.
7 Mr Lobo's 'Response to Allegations' document dated 15 February 2018, para (J), (K).
[17] Mr Lobo asserts that he now clearly understands the difference between relationships with students versus those with adults and that this was made very clear to him by Dr Jeff Bailey, a clinical psychologist. He acknowledges that he 'crossed or blurred a few lines.'8
[18] On 11 June 2018, Mr Lobo provided a report to the Tribunal from Dr Bailey, who is a former teacher and school principal.
[19] Dr Bailey states in his Report that he had seen Mr Lobo on two occasions and had viewed the matters 'raised by QCAT' and Mr Lobo's responses.
[20] Dr Bailey indicated that his initial response to the material was that Mr Lobo had engaged in unprofessional behavior and he seemed to have failed to maintain a professional distance between himself and his students. Further, that, without knowing the exact discussions Mr Lobo had with his female students, discussion of health matters was inappropriate.
[21] Dr Bailey also observed that the use of nicknames for students and the use of expressions such as 'my dear beautiful rabbit' were totally unacceptable. Dr Bailey also noted that Mr Lobo did not wish him to contact the most recent school principal from a school several years ago.
[22] Dr Bailey stated that he believes that Mr Lobo 'has a far greater understanding of the requirements of the profession of teaching'. Mr Lobo insists that he will not teach again but wanted to get his registration back.
[23] Dr Bailey concluded that Mr Lobo understands and respects the QCT Code of Ethics and he is aware of the errors he made.
[24] We find that Mr Lobo has accepted the allegations made against him. In our view he has demonstrated remorse, reflected on his behaviour and sought appropriate professional help to enable him 'to better go about how [he] can work as a more professional and effective educator.'9
[25] We find that Mr Lobo engaged in unprofessional behaviour, in particular by failing to maintain a professional distance between himself and his students. He engaged in inappropriate discussions about personal health matters with female students, gave a gift of an iPod to one student, and gifts of a DVD, and framed photographs with personal messages, to other students. He also used inappropriate nicknames and expressions when engaging with students. He also continued to have overly familiar contact with some students after he had left the school.
[26] We find that Mr Lobo behaved in a way that does not satisfy the standard of behavior generally expected of a teacher and, accordingly, that the disciplinary ground in s 92(1)(h) has been established.
[27] As we have determined that a ground for disciplinary action has been established we may proceed to impose a sanction under s 160 of the Act.
8 Ibid paragraph 2.
9 Mr Lobo's correspondence 17 June 2018, paragraph 1.
[28] There are a range of sanctions provided for including: cancelling a teacher's registration, issuing a reprimand, imposing conditions on a teacher's registration or permission to teach, and/or ordering that a particular notation or endorsement about the teacher be entered in the register.10
[29] With regard to a sanction, the College submits that Mr Lobo accepts that the ground of disciplinary action has been established. He is apologetic for his actions and any stress or anxiety that his actions have caused to his students. He now understands the importance of professional boundaries that must exist between teachers and students. He contends that his actions were not motivated by a desire to harm and that he had tried to build a rapport with his students.
[30] The College identifies the following mitigating factors:
(a) the respondent has cooperated with the disciplinary process;
(b) the respondent has not previously been the subject of disciplinary proceedings; and
(c) the respondent has sought professional assistance by engaging Dr Jeff Bailey.
[31] The College points out that the respondent's fundamental lack of knowledge about his duty as a teacher to maintain professional boundaries is evidenced by him committing no less than 20 professional boundary breaches during his 3-month contract.
[32] The College contends that the respondent cannot be considered an inexperienced teacher, having been registered since 2010, and therefore his failure to maintain professional boundaries is concerning. Further, that the Tribunal may consider requiring the respondent to undertake further therapeutic treatment with a psychologist as this will mitigate the risk of re-engaging in similar conduct in the future.
[33] In arriving at an appropriate order, we have taken into account the purposes of the Act11 particularly regarding disciplinary proceedings.12 We have also had regard to other decisions of the Tribunal concerning s 160.
[34] The Tribunal has previously commented that '...punishment is not the aim, deterrence is a relevant consideration'. The sanction imposed must provide 'general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question.'13
[35] The College referred the Tribunal to two decisions where teachers had engaged in overly familiar conduct with students:
(a) Queensland College of Teachers v Chambers [2012] QCAT 491. In this matter an experienced teacher engaged in overly familiar communication with a 12- year-old former student over a two-month period and failed to report suspected harm to her. The teacher's registration was cancelled but recognising his
10 The Act, s 160(2)(a)-(l).
11 The Act, s 3.
12 Queensland College of Teachers v Plumbley [2017] QCAT 474, [20].
13 QCT v TSV [2015] QCAT 186.
admissions and time spent out of teaching after the allegations were made against him, he was allowed to reapply for registration after 3 months.
(b) Queensland College of Teachers v Rudd [2011] QCAT 367. In this matter the teacher was a former approved teacher at the time of the proceedings and no prohibition period was imposed as she had been suspended for 9 months until her registration had ended. She was a first-year inexperienced teacher and the case involved her behaviour towards a year 9 student most of which occurred after the student had left the school.
[36] The College submits that, despite the recent decision of the Tribunal in the matter of QCT v Teacher CXJ,14 the Tribunal should still have regard to the decisions of Chambers and Rudd. In that decision, the College argues that the Tribunal observed that decisions made prior to 16 January 2012 when the maximum period of prohibition was increased from a period of five years to an indefinite period, were less helpful than more recent decisions for achieving consistency in the period of prohibition.
[37] The College proposes a sanction prohibiting Mr Lobo from applying for registration or permission to teach for a period between 9 to 24 months from 14 December 2016, the date of Mr Lobo's suspension. The College also proposed a notation be entered into the register requiring, among other things that Mr Lobo obtain a psychological report addressing a number of factors.
[38] We are of the view that Mr Lobo's registration should be cancelled and that he should be prohibited from reapplying for registration for 3 years from the date of his suspension. We agree that the notation as proposed by the College should be entered on the register.
Should this matter be published in a de-identified format?
[39] The College points out that ordinarily, in the interests of open justice proceedings should be published in full to ensure that they are open to public scrutiny in order to maintain the integrity and independence of Courts and Tribunals. The College argues that the word 'necessary' imposes a high standard on the Tribunal in that the non- publication must be necessary, not merely desirable reasons stated in section 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[40] The College acknowledges that non-publication orders are protective, and it is not in the interests of justice for children or young adults to be identifiable to the public. It points out that in this case the year 7 students who were the subject of Mr Lobo's inappropriate conduct in 2016 would now be in high school and therefore publication of the respondent's name, the student's names, or the school's name would not be in the interests of justice.
[41] Therefore, the College submits that in accordance with the Tribunal's previous decision in Queensland College of Teachers v FAS,15 any non-publication order should be subject to the College having the ability to provide the Tribunal's decision to:
(a) Any future employers who employ the respondent in a teaching role or in child- related employment
(b) Mr Lobo's current and future health practitioners;
(c) Other teacher regulatory authorities; and
(d) The Chief Executive of employment screening.
[42] We have considered all of these matters and accept the submissions by the College that the teacher's registration should be cancelled. However, in view of the circumstances of this particular case the Tribunal has determined that the cancellation should extend from 14 December 2016 until 14 December 2019.
[43] We are not persuaded that this is a matter where it would be necessary to protect publication of the name of the teacher. We do not think that there is any real risk of harm to the students involved or the school, if the name of the teacher is known. There is a public interest in making available information about teachers who have been subject to disciplinary action. In this matter, we consider that the public interest outweighs any risk of harm to the students involved in the investigation.
[44] Therefore, the Tribunal considers that this is a matter in which the teacher's name should be published, but the name of the school and the relevant students should remain confidential. In all other respects the Tribunal accepts the submissions of the College.
[45] As the Tribunal's reasons do not identify the students or the school, there is nothing stopping the College from making available the Tribunal's reasons to any other entity that it is entitled to supply with such information.
[46] The orders are:
The ground for disciplinary action under section 92(1)(h) of the Act has been established.
Should after the expiry of the prohibition period, the Respondent apply for registration or permission to teach, that application must include an independent psychological report satisfactory to the Queensland College of Teachers ('QCT') addressing the following:
(a) An assessment of the Respondent's appreciation of the following:
(i) Differentiating between personal and professional relationships;
(ii) The legal obligations of teachers and tutors;
(iii) Development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students;
(iv) Risk assessment and early issue identification of potentially problematic situations and venues as well as initiating realistic solutions for avoiding the risk of harm to students;
(v) The extent and nature of the student, colleague, parent and community trust inherently invested in a teacher;
(vi) Personal and social behaviour that would compromise the professional standing of a teacher and the profession of teaching;
(vii) The effect of inappropriate relationships with students;
(viii) The trust and power granted to a teacher;
(b) The importance of full adherence to the Queensland College of Teachers Code of Ethics.
(c) An indication from the psychologist about whether the psychologist is satisfied that the respondent has adequately understood and addressed the above points.
(d) The status of the respondent's current mental health including details of any therapy undertaken since the date of the disciplinary decision.
(e) Confirmation that the psychologist was provided with copies of
- (i) The Tribunal's disciplinary decision;
- (ii) The QCT referral under section 97 of the Act.
Queensland College of Teachers
Lobo [2019] QCAT 26