//
[2012] QCAT 694
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2012-11-12
Original judgment source is linked above.
Queensland College of Teachers v Teacher BAM [2012] QCAT 694
(i) an indication from the psychologist about whether the psychologist is satisfied that Teacher BAM has adequately understood and addressed the above points; and
(ii) reference to the psychologist being provided with copies of the QCAT disciplinary decision and the Professional Practice and Conduct Committee referral.
TEACHERS - ground for disciplinary action - suitability to teach - private texting to students - inappropriate comments of a sexual nature -impact of seniority and leadership role of teacher on sanction
NON-PUBLICATION - where teacher's wife experiencing suicidal ideation - where necessary to avoid harm
Education (Queensland College of Teachers) Act 2005, ss 12(1)(b), 12(3)(a) and (b), 92(1)(h), 115(1)(b), 158(1), 160(2)(e)(h)(i)
The matter was decided on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009
[1] Teacher BAM is a 44 year-old man who has been registered as a teacher since 22 January 1991. He is currently employed as a Deputy Principal in a non-State school in regional Queensland.
[2] From 2003 the teacher was employed at another non-State school in regional Queensland, initially as Head of Senior School, then Deputy Principal and from July 2009 as Principal, until he resigned on 2 March 2011.
[3] On 27 March 2012 the Tribunal received an Application or Referral - disciplinary proceeding from the Queensland College of Teachers (QTC).
[4] The Referral was made pursuant to a decision of the Professional Practice and Conduct Committee (PP&C Committee) of the QTC on 16 March 2012 under the Education (Queensland College of Teachers) Act 2005[1] following completion of an authorised investigation and written report.
[5] The PP&C Committee reasonably believes that a ground for disciplinary action exists against Teacher BAM in that the teacher is not suitable to teach pursuant to the Act[2].
[6] It is alleged that between 20 January and 21 November 2009, whilst employed as Deputy Principal and then Principal at the relevant school, Teacher BAM engaged in over familiar and/or sexually suggestive behaviour with two female students.
[7] In particular:
On a date unknown between 20 and 24 January 2009 the teacher made sexualised comments to two female students There's a really hot chemist girl down there. I'd ride her up the elevator.
On a date unknown between 20 and 24 January 2009 the teacher asked for the mobile phone numbers of two female students.
On a date unknown between 20 and 24 January 2009 the teacher sent the following text message to the two female students. Hey. What are you doing? I just got out of the shower.
On a date unknown between 26 January and 21 November 2009 the teacher sent a text message to one of the female students that said words to the effect Saw you on the oval. Nice Legs.
At the school athletics carnival in 2009 the teacher referred to another female student and said to one of the two female students: Do you know that girl? Student She's like my little sister. Teacher Is she a tart? Student No. She's lovely. Teacher Yeah, she's quite a pretty girl.
In a conversation with the same female student, when talking about make-up and fake tan, the teacher said words to the effect You don't need that. I like natural girls.
In a conversation with the same female student the teacher spoke of his wife in a derogatory fashion, namely that he compared her to a rock, and said she is nothing like you.
When the teacher was alone with the same female student in a closed office he said the words Hi sexy.
On an unknown date in 2009 the teacher contacted the same female student on her mobile phone late at night and had a personal conversation with her and the second female student, asking about boyfriends and what sexual experiences they had had with boys.
Engaged in approximately ten text conversations with the second female student of a personal and social nature, that were not for an educational purpose.
[8] The parties agree that the ground for disciplinary action, that Teacher BAM is unsuitable to teach (sic) within the meaning of section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 is established on the following agreed facts:
[9] Between 20 January and 21 November 2009 whilst employed as the Deputy Principal and then Principal at the relevant school Teacher BAM engaged in over familiar and/or sexually suggestive comments with two female students and in particular:
On a date unknown between 20 and 24 January 2009 the teacher made sexualised comments in the presence of two female students namely, There's a really hot chemist down there. I'd ride her up the elevator.
On a date unknown between 20 and 24 January 2009 the teacher obtained the mobile phone numbers of the two female students.
On a date unknown between 20 and 24 January 2009 the teacher sent the following text message to the two female students. Hey. What are you doing? I just got out of the shower.
On a date unknown between 26 January and 21 November 2009 the teacher sent a text message to one of the female students that said words to the effect Saw you on the oval. Nice Legs.
At the school athletics carnival in 2009 the teacher referred to a female student and had the following conversation with one of the two female students: Do you know that girl? Student She's like my little sister. Teacher Is she a tart? Student No. She's lovely. Teacher Yeah, she's a pretty girl.
In a conversation with the same female student, about make-up and fake tan, the teacher said words to the effect You don't need that followed by a comment that it was preferable for female students to appear 'natural'.
In a conversation with the same female student the teacher spoke of his wife in a derogatory way, namely that he compared her to a rock.
While the teacher was alone in a closed office with the same female student, he said the words Hi sexy.
On an unknown date in 2009 the teacher contacted the same female student on her mobile phone late on a Saturday night and had a personal conversation with her in the presence of the other female student.
[10] In their joint submission the parties note, any or all of the suitability considerations under section 12 of the Act can establish that a teacher is not suitable to teach, but submit that suitability must be assessed as at the time of hearing and not at the time of the relevant conduct. The parties submit ultimately the Tribunal must decide whether those grounds have been established on the balance of probabilities in accordance with the principles in Briginshaw.[3]
[11] The parties submit that the relevant suitability considerations in this case are those relating to suitability to work in a child-related field, whether the person behaves in a way that does not satisfy a standard generally expected of a teacher, or otherwise, behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach, or, any other relevant matter.[4]
[12] The parties submit that for the Tribunal to decide whether a person is not suitable to work in a child-related field it has to consider whether the person poses an unacceptable risk of harm to children[5] along with considering the qualities to be suitable to work with children, including, a high level of trustworthiness, personal integrity, appreciation of the rights of a child to be protected from risks of harm and appreciation of the boundaries that should exist between a child and their teacher.[6]
[13] The parties submit that, whilst the standard of behaviours generally expected of a teacher are not prescribed, whether conduct falls substantially short of the standards or is disgraceful or improper involves consideration of community/professional expectations and standards, for instance, the Code of Ethics as a Code of Practice as developed pursuant to the Act.[7]
[14] The parties submit that, whilst this matter involves a failure to maintain professional boundaries and poor appreciation of the need to actively protect children from the risks of harm that flow from the reduction of boundaries and introduction of sexual topics, the conduct does not establish that the teacher presents an unacceptable risk of harm to children.
[15] However, the parties submit that the teacher's failure to maintain professional boundaries falls substantially short of the standards expected of teachers and thus establishes the ground for disciplinary action that the teacher is not suitable to teach.[8]
[16] The Tribunal finds that the relevant suitability to teach consideration is that relating to standards expected of a teacher in the position of the teacher. The Tribunal accepts that the agreed behaviours are limited to year 12 students and that the level of the communication, although inappropriate and sexualised, did not evidence behaviour that suggested or established a progressing pattern of behaviour or an unacceptable of risk of harm. The Tribunal also agrees that the behaviour was not to the degree or level that could establish the action as disgraceful or improper that shows the teacher is unfit to be granted registration. The Tribunal is therefore satisfied, that those suitability considerations, require a different and more serious level of behaviour to that as exhibited by Teacher BAM.
[17] The Tribunal is satisfied that by obtaining the two female students' mobile telephone numbers and using those contact numbers at inappropriate times and for inappropriate reasons, by engaging with the students in an over familiar, inappropriate and sexualised manner and tone, is a departure of a standard of behaviour generally expected of a teacher, particularly a teacher in the position of the respondent.
[18] In the circumstances the Tribunal is satisfied that Teacher BAM behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher.[9] The Tribunal is therefore satisfied that a ground for disciplinary action is established,[10] that being, that Teacher BAM is not suitable to teach.[11] The Tribunal must now consider the type of disciplinary action to be imposed under the Act.[12]
[19] The Tribunal has considered the parties' proposed agreed position in relation to the disciplinary action they consider is appropriate in the circumstances of this matter.
[20] The parties propose that, Teacher BAM's teacher registration be suspended for a period of six months from 30 November 2012.[13]
[21] Further, the parties propose that the following notation[14] be entered into the register: Before Teacher BAM's suspended teacher's registration can be reinstated[15], he must provide the Queensland College of Teachers with a psychological report satisfactory to the QCT addressing the following:
differentiating between personal and professional relationships;
the legal obligations of teachers and tutors;
development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students;
personal and social behaviour that would compromise the professional standing of a teacher and the profession of teaching;
what constitutes inappropriate communication;
understanding the effect of inappropriate relationships with students;
the awareness of the trust and power granted to a teacher;
understanding full adherence to the QTC Code of Ethics;
an assessment of the likelihood of Teacher BAM engaging in similar type behaviour in the future.
[22] That the psychologist's report to include: (i) an indication from the psychologist about whether the psychologist is satisfied that Teacher BAM has adequately understood and addressed the above points; and (ii) reference to the psychologist being provided with copies of the QCAT disciplinary decision and the Professional Practice and Conduct Committee referral.
[23] Teacher BAM is an approved teacher and the applicable options for disciplinary action are those outlined in section 160 of the Act.
[24] The subject conduct here consists of inherently risky and inappropriate sexualised comments in person and by text and it fails to maintain appropriate boundaries with students, the comments are neither suggestive nor preparatory. However an increased risk when such conduct is by a person in a leadership position, in that others may wrongly perceive that such behaviour is condoned within the school and risks undermining the professional boundaries across the wider school environment.
[25] The parties submit there are aggravating features of this matter and include: personal communication without an educational context instigated by the teacher and unresponsive to situation; the communication included sexualised comments and comments on the appearance/attractiveness of female students; the teacher was an experienced teacher in a leadership role.
[26] The parties submit there are also mitigating factors which include: the conduct does not involve grooming behaviours; the conduct occurred in 2009 and since that time the teacher has been Deputy Principal of a new school without complaint; the teacher co-operated in the regulatory investigation including making significant admissions and in the disciplinary proceedings facilitated an early end to the proceedings through the formalisation of admissions and not contesting the proceeding and the teacher's participation in the disciplinary process demonstrates remorse.
[27] Furthermore, the teacher submits he is a strong advocate for education and cares greatly for the welfare of students; he did not intend to engage in over familiar or sexually suggestive behaviour and in hindsight acknowledges his comments were unacceptable; the teacher has sought counselling and guidance from his local pastor; he has had an unblemished career since registration in 1991 and has been highly regarded by his peers.
[28] The parties submit the appropriate disciplinary action involves comparison to other cases[16] but should ultimately reflect the gravity of departure from the appropriate standards. The parties submit the sanction should reflect a general deterrence to members of the teaching profession and specific deterrence to the teacher in question.
[29] The parties submit that the comparable cases are distinguishable from this matter because the conduct of Teacher BAM is less serious than in both those cases, however concede Teacher BAM is in a leadership role.
[30] At the Tribunal's direction the parties provided further submissions relating to the possibility the Tribunal may increase the suspension period to twelve months given the teacher's seniority.
[31] In response the teacher noted that the function of penalty in this jurisdiction is protective not punitive,[17] and submitted that whilst seniority was an important factor it is only one factor and should not be considered in isolation.
[32] The teacher submits he understands his conduct fell short of standards and has expressed remorse to that behaviour. Furthermore the teacher submits he has co-operated with the disciplinary process and continues to seek counselling and professional psychological advice noting, amongst other training, his recent attendance to a professional standards course on appropriate behaviour with children.
[33] The teacher submits since the events he has continued to make a significant contribution to education at a senior level, a role in which his superior has deposed to the trust and confidence she has in him.
[34] He has an otherwise unblemished record since registration in 1991.
[35] The teacher submits all cases turn on their own facts and submits the proposed six month suspension is within the range of the cases already referred to, and that the disciplinary penalty in those cases,[18] was for 12 months on significantly more serious conduct involving senior and experienced teachers.
[36] The QCT in its further submissions acknowledges the Tribunal is able to go beyond agreed facts and cannot ignore its public interest function in determination of disciplinary proceedings.[19] The QCT submits as emphasized by the Tribunal in the Medical Board of Australia v Dolar,[20] when imposing a stronger sanction than jointly submitted by the parties, the purpose of the disciplinary sanction is not to punish but to maintain professional standards and confidence in the profession and to protect the public.
[37] The QCT submits parents, the school and community place a high level of trust in teachers to care and protect students from harm and that teachers in leadership roles are expected to demonstrate by example, as well as provide advice to their staff about, appropriate standards of conduct.
[38] The QCT notes in the matter of QCT v AB_[21]_ the Tribunal considered the seniority, although not a leadership role, of a teacher in ordering a three-year prohibition for downloading, viewing and deleting child exploitation material on his home computer. The QCT submits other cases concerning senior or experienced teachers are distinguishable by the gravity of their conduct.
[39] The QCT submits the fact the teacher was in a leadership role during the course of his conduct is an aggravating factor and is a relevant consideration for the Tribunal in determining penalty.
[40] The Tribunal has considered all of the material and submissions provided by the parties in deciding the type of disciplinary action to impose.
[41] A variety of factors are considered in reaching a decision and include: the nature and context of the behaviour itself, the level of insight a teacher may have in regard to the impact the behaviour may have on the students, school and community, what actions they have taken to remedy the behaviour, their teaching history, seniority and any leadership role they may hold. Overarching considerations include protecting students from harm and maintaining public trust and confidence in the teaching profession and upholding professional standards.
[42] The Tribunal notes, in regard to the nature and context of the behaviour, that whilst the conduct did not include what could be described as grooming or preparatory behaviour, or physical or intimate contact, the Tribunal is satisfied that the actions of the teacher were not related to or instigated with any educational purpose or context. In particular some texting took place late one night and all incidents took on a sexualised language or tone. The Tribunal notes the language used by the teacher was not only sexualised but at times was harsh and disparaging in tone about women (I'd ride her up the elevator) and a younger female student (is she a tart?).
[43] The Tribunal accepts the teacher has an otherwise unblemished record and has had no complaints against him in his new role as Deputy Principal. His current supervisor deposes she trusts him to act as Principal in her absence and that staff and students look up to him. However, the Tribunal notes that in the investigation of this matter inappropriate pictures, including photographs of naked or semi-clad women, were found on the teacher's computer. Furthermore, although not formally put to the teacher to respond to, other teaching staff in interview reported that the teacher made sexualised and disparaging comments about women staff and mothers of students.
[44] The Tribunal acknowledges the admissions the teacher has made in the proceeding to facilitate an early end to the matter. However, the Tribunal is not persuaded that this in itself sufficiently demonstrates remorse or insight into the behaviour. Whilst the teacher advises he has sought counselling from his local pastor, and more recently undertaken training in professional boundary issues, there is no indication why the teacher could not have undertaken such courses earlier in proceedings to better demonstrate a greater level of insight than training that has come very late in the proceedings.
[45] Furthermore there is no indication or documentation clarifying whether the recent training was undertaken on the teacher's own volition or whether it was a requirement of his employment.
[46] The Tribunal also notes there is no information around what the teacher disclosed about the incidents on engagement with the new school. In the Affidavit of the new school Principal she states that it was on or around March 2012 the teacher advised her that he was a respondent in a disciplinary proceeding in the Tribunal. This is a year after he resigned from the subject school following the investigation of the matter.
[47] The teacher states he is a strong advocate for education and cares greatly for the welfare of students. The current Principal shares the teacher's view. However, whilst being a strong advocate for education is commendable, it is apparent that the welfare of students was not in the forefront of the teacher's mind in the circumstances of this matter. Actions speak louder than words and it is actions on which children and those new to the teaching profession model their own behaviour and particularly from someone in a position of authority.
[48] Teacher BAM was in two of the most senior leadership roles in a school when the behaviours took place. The role of Principal is often what makes and marks a school. The Principal sets the tone and displays the behaviour on which students and staff model their own behaviour. If the tone and behaviour fall below professional standards there is greater risk to the welfare of the students and damage to the reputation of the school and those engaged with it. The Tribunal is satisfied that if a teacher who breaches standards is in a leadership role, particularly as Principal, it necessarily follows it will be a significant consideration when imposing disciplinary sanction.
[49] Whilst the Tribunal agrees with the parties that the teacher's registration should be suspended for a period, along with the notation and conditions as proposed, the Tribunal is not persuaded that an imposition of a six month suspension period sufficiently provides a deterrence to teachers generally or to Teacher BAM specifically. Whilst the cases referred to, to compare an appropriate sanction, involve somewhat more serious behaviour than in this matter they also include cancellation versus suspension of registration, longer periods of prohibition and did not involve a teacher in the leadership roles of either Deputy Principal or Principal. In all the circumstances the Tribunal is satisfied that a suspension period of twelve months is a more appropriate sanction and will order accordingly.
[50] Whilst it is open to the Tribunal to commence the suspension from 30 November 2012, as proposed by the parties, the Tribunal has decided the suspension should commence from the date of the order. The sanction, amongst other things, is to provide a deterrence generally and specifically to the teacher. The Tribunal is satisfied that the teacher is not suitable to teach and so the suspension should commence on the date of the order and not at some later date merely convenient to the teacher.
[51] The Tribunal agrees with the parties that the proposed psychological counselling should be undertaken before he is reinstated to the profession so that there is confidence that Teacher BAM has the appropriate level of insight into the behaviours he has displayed and the impact they have on others. The Tribunal will order accordingly.
[52] On 19 October 2012 the Tribunal issued a non-publication order. The order stated i) publication of the teacher's name, his wife's name and his brother's name in this disciplinary proceeding is prohibited; ii) publication of the names of the students and their addresses referred to in this disciplinary proceeding is prohibited; iii) publication of the name and addresses of the teacher's current school and the students' school referred to in this disciplinary proceeding is prohibited. The reasons for that decision follow.
[53] An application for non-publication was received along with the joint submissions of the parties. The Queensland College of Teachers however stated it neither supported nor opposed the application.
[54] The application, made pursuant to the Queensland Civil and Administrative Tribunal Act 2009,[22] sought the non-publication of the teacher's name and identity in the decision.
[55] The basis of the application was due to the harmful impact the publication of the teacher's name and identity would have on other persons including his wife, his brother, the two female students and his former and current school.
[56] Following the application for non-publication the teacher provided written submissions and Affidavits in support.
[57] In essence the teacher submits, in regards to the two female students, as there were only a few students whom he knew well and interacted with the students would be easily identified and he is concerned not to cause any further embarrassment, distress, humiliation or harm to them.
[58] In regards to his brother, the teacher submits that as he is also a teacher and has many career parallels he is concerned that he will be mistakenly identified as the teacher. In the Affidavit provided by the teacher's brother, the brother states he has had a significant career association with the teacher and is often mistaken for him. The brother deposes he believes that publication of the teacher's name and identity would cause angst amongst the parents of his school to the extent that pressure would be placed on him to resign. He states he is not merely concerned with embarrassment but has genuine concerns about the detrimental effect that publication would have on his career and consequent psychological distress and harm.
[59] In regards to his wife the teacher submits she has consulted a psychologist in relation to the impact publication of these proceedings would have on her mental health and well-being. The clinical psychologist provided an Affidavit that noted the teacher's wife is suffering from a Major Depressive Disorder that is secondary to the QCT investigation into her husband's behaviour. The psychologist further noted the teacher's wife has severe depression and anxiety as well as suicidal ideation.
[60] The psychologist opines publication of the decision will cause further decompensation in the teacher's wife's fragile psychological health and would result in even more significant depressive symptomology and stronger suicidal ideation. Furthermore, the psychologist opined it is his strong opinion that the teacher's wife's psychological health will deteriorate quite significantly if the QCAT's decision is published or made public.
[61] In regards to the former and current schools the teacher submits, because of his high profile in the community, the reputation of both schools would be harmed. In the Affidavit of the Principal of the teacher's current school the Principal opined that the publication of the teacher's name and identity would cause alarm and distress in the students and their families and that the dramatic growth the school has experienced in the last year would be reversed.
[62] When considering an application for non-publication the Tribunal must consider not only the requirements of the QCAT Act but also how a non-publication decision sits with the broader objectives of the enabling legislation in this case the Education (Queensland College of Teachers) Act 2005. The objectives include protecting the public and maintaining public confidence in the teaching profession. Transparency around the decision-making process and publication of the decision assists in fulfilling these objectives.
[63] The relevant provision in the QCAT Act in the current circumstances is that considered necessary to avoid endangering the physical or mental health or safety of a person.[23]
[64] Given the overall protective nature of the enabling Act towards children the Tribunal is always minded to prohibit publication of students' names as it is in the interest of justice young people should be confident that their personal particulars will be kept private when they are caught up in disciplinary action against their teachers.[24]
[65] In regards to a prohibition on the publication of the teacher's name and identity to avoid endangering the physical or mental health or safety of a person, the Tribunal needs to be satisfied that the endangerment is real and serious and not concerned about mere embarrassment or humiliation that may unsurprisingly follow from a husband's, relative's or colleague's poor behaviour.
[66] Given the furnishing of a specialist health professional report that clearly sets out the seriousness of the teacher's wife's fragile mental state, that includes suicidal ideation, the high likelihood of her mental health deteriorating if publication occurred and that on-going treatment has been recommended, the Tribunal is satisfied that non-publication of the teacher's name and identity is necessary to avoid endangering the teacher's wife's mental health.
[67] The Tribunal is also satisfied given the seriousness of the teacher's wife's mental health it necessarily follows the teacher could be readily identified through the publication of the relevant two school communities and his brother's name that it is therefore appropriate they should be covered by the non-publication order and it is not necessary for the Tribunal to consider their submissions separately or any further.
[68] The Tribunal ordered accordingly.
[2] Ibid, section 92(1)(h).
[3] Briginshaw v Briginshaw [1938] HCA 34.
[4] Education (Queensland College of Teachers) Act 2005, sections 12(1)(b), 12(3)(a) and (b), and 12(2).
[5] M v M [1988] HCA 68; Queensland College of Teachers v Brady [2011] QCAT 464.
[6] Queensland College of Teachers v Kyei [2012] QCAT 335.
[8] Ibid, section 92(1)(h).
[9] Ibid, section 12(3)(a) - suitability to teach - other considerations.
[10] Ibid, section 158(1).
[11] Ibid, section 92(1)(h).
[12] Ibid, section 160(2).
[13] Ibid, section 160 (2)(e) - suspend the teacher's registration or permission to teach for a stated time.
[14] Ibid, section 160(2)(i) make an order that a particular notation or endorsement about the teacher be entered in the register.
[15] Ibid, section 160(2)(h).
[16] Queensland College of Teachers v Robert Thomas Pau [2010] QCAT 493; and Queensland College of Teachers v Jones [2010] QCAT 543.
[17] Queensland College of Teachers v Ashton [2010] QCAT 80.
[18] QCT v Jones [2010] QCAT 543; QCT v Pau [2010] QCAT 493.
[19] Re Hodgekiss (1962) 62 SR (NSW) 340 at 343; R v Broad &Prior [2010] QCA 53; Medical Board of Australia v Grant [2012] QCAT 285 at para 3.
[20] Medical Board of Australia v Dolar [2012] QCAT 271.
[21] QCT v AB [2010] QCAT 271.
[24] QCT V Brady [2010] QCAT 464 at para 61.
Queensland College of Teachers
Teacher BAM [2012] QCAT 694