Queensland College of Teachers v Banyai
[2013] QCAT 180
•17 April 2013
| CITATION: | Queensland College of Teachers v Banyai [2013] QCAT 180 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Heath James Banyai (Respondent) |
| APPLICATION NUMBER: | OCR282-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Kerrie OÕCallaghan, Senior Member Ms Joanne Browne, Member Mrs Robyn Oliver, Member |
| DELIVERED ON: | 17 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Heath James BanyaiÕs teacher registration is cancelled and he is prohibited from reapplying for registration as a teacher for a period of twelve months effective from 5 December 2012. 2. The register be endorsed with a notation that any application of Mr Banyai for re-registration must be accompanied by an independent psychologist report satisfactory to the Queensland College of Teachers addressing the following: (a) Differentiating between personal and professional relationships; (b) The legal obligations of teachers and tutors; (c) Development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students; (d) Personal and social behaviour that would compromise the professional standing of a teacher and the profession of teaching; (e) What constitutes inappropriate communication; (f) Understanding the effect of inappropriate relationships with students; (g) The awareness of the trust and power granted to a teacher; (h) Understanding and full adherence to the Queensland College of Teachers Code of Ethics; (i) An assessment of the likelihood of Mr Banyai engaging in similar type behaviour in the future. 3. The psychologistÕs report to include: (a) An indication from the psychologist about whether the psychologist is satisfied that Mr Banyai has adequately understood and addressed the above points. (b) Reference to the psychologist being provided with copies of: (i) The Queensland Civil and Administrative Tribunal disciplinary decision; (ii) (ii) The statement of agreed matters. 4. Publication of the names of the students referred to in these proceedings is prohibited. (a) Publication of the name and address of the school referred to in these proceedings is prohibited. |
| CATCHWORDS: | TEACHER Ð suitability to teach Ð where inappropriate Facebook contact with former students Ð where teacher actively participated and failed to discourage inappropriate Facebook contact Ð where teacher made full admission to the allegation NON-PUBLICATION ORDER Ð where contrary to the public interest to identify former students and name of school Education (Queensland College of Teachers) Act 2005, s 3, s 12(3), s 12A, s 92(1)(h), s 160(2)(d) Queensland College of Teachers v Chambers [2012] QCAT 491, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Ms Kerrie OÕCallaghan, Senior Member, Presiding and Ms Browne, Member
Mr Banyai is 31 years of age and has been a registered teacher since 21 December 2006. He has been employed (on a contract basis) by the Department of Education and Training Queensland (DET) in various schools since 2007.
In July 2011 Mr Banyai taught at a Brisbane based school as a science teacher. He finished teaching at the school on 25 November 2011 although he remained assigned to the school until 18 January 2012.
On 20 January 2012 Mr Banyai was contracted to teach at another school outside the Brisbane area and commenced teaching (at that school) on 23 January 2012.
In late 2011 to early 2012 Mr Banyai communicated with former students (of the Brisbane school) via Facebook. The students were female and 14 or 15 years of age at the time.
The Facebook communication was inappropriate because it was over familiar and sexual in nature. One of the conversations concluded with an exchange of mobile phone numbers.
The exchange of Facebook communication came to the attention of the Queensland College of Teachers (QCT) in early 2012, when the conversations of one of the studentÕs who had been communicating with Mr Banyai, was discovered by an older sibling. The older sibling copied the exchange of messages onto a USB stick which was given to the principal of the Brisbane school. The principal reported the conduct to the DET, Ethical Standards Unit.
The QCT commenced an investigation and interviews were conducted. Mr Banyai made full admission to the allegation and the proposed disciplinary action.
Mr BanyaiÕs employment was terminated by the DET on 28 February 2012 because Mr Banyai admitted to the inappropriate conversations (via Facebook).
The QCT has referred the matter concerning Mr BanyaiÕs conduct (as a registered teacher) to the Tribunal to determine whether disciplinary action should be taken on the basis that Mr Banyai is not suitable to teach.[1]
[1]Education (Queensland College of Teachers) Act 2005, s 111A. The Practice and Conduct Committee has authorised the referral of the matter to the Tribunal. The Tribunal waived the requirement (at the hearing) to issue a further notice of intention to conduct a hearing as required under s 133(4)(b) of the Act on the basis that each party had received notice of the hearing and a statement of agreement matters had been prepared and filed. The Tribunal has the power under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 to waive compliance with s 133(4)(b).
Is Mr Banyai unsuitable to teach?
The Facebook communication took place over a period of six to seven weeks and commenced after Mr Banyai had finished teaching at the Brisbane school.
The communication continued into early 2012 after Mr Banyai had commenced teaching in a new school (outside Brisbane) and only came to an end after the conversations were discovered by the sibling of one of the students.
The nature of the conversations is overly familiar and sexual in nature and Mr Banyai has actively participated in the conversations.
Mr Banyai did not discourage the former students from using words such as ÒbitchesÓ, ÒcootÓ, Òfuck youÓ, calling him an ÒidiotÓ and ÒwhoreÓ.
Mr Banyai also engaged in discussions about the attractiveness of teachers at the Brisbane school and responded to questions asked by the former students as to Òwho was the [best] looking in [the] classÓ.
Mr Banyai admitted to past drug use, joked about stalking one of the former students in the city on the following or a later day, and agreed to give one of the former students $500, asking the student what he would get in return.
Mr Banyai initiated several of the conversations on Facebook stating on one occasion that he had girls with him and was ÒwastedÓ on beer. On another occasion Mr Banyai indicated that he wanted sex and he provided his mobile phone number to one of the former students.
One of the former students initiated the conversations with Mr Banyai on Facebook making inappropriate sexual references such as: ÒI wish you were up meÓ, ÒI want you in meÓ and ÒIÕve been a bad studentÓ. There was an exchange of communication between Mr Banyai and the former students making reference to the participation in a ÒthreesomeÓ and Mr Banyai did not discourage the students from using words and making suggestions of an inappropriate sexual nature such as: Òyou know you want toÓ and Òsuck me offÓ.
We are satisfied that Mr BanyaiÕs conduct demonstrates a failure to meet the standard of behaviour generally expected of a teacher[2] and a failure to uphold the standards in the teaching profession Ð Mr Banyai has engaged in inappropriate communications with his former students and has failed to maintain Òproper professional boundariesÓ between himself and his students (former).[3]
[2]A person is not suitable to teach if his/her behavior fails to meet the Òstandard of behavior generally expected of a teacherÓ, Education (Queensland College of Teachers) Act 2005, s 12(3)(a).
[3] See Queensland College of Teachers v Chambers [2012] QCAT 491, [10].
Mr Banyai also acknowledges the seriousness of his conduct and agrees that it has been established that he is not suitable to teach.[4]
[4]Mr Banyai agrees that he has failed to meet the standard as defined in s 12(3)(a) of the Education (Queensland College of Teachers) Act 2005.
Is the proposed disciplinary action appropriate in the circumstances?
The QCT and Mr Banyai have proposed that certain disciplinary action be taken[5] - that Mr BanyaiÕs teacher registration be cancelled and he be prohibited from reapplying for registration as a teacher for a period of 12 months with certain conditions to be noted in the register.[6]
[5] Statement of agreed matters signed by Mr Banyai on 5 December 2012.
[6]The action that may be taken by the Tribunal (for an approved teacher) is set out in s 160 of the Education (Queensland College of Teachers) Act 2005.
Disciplinary action to be taken by the Tribunal in these matters is not punitive in nature. Disciplinary action is taken in the interests of the protection of children and the community. There must be a Òbalance between general and specific deterrenceÓ[7] taking into account the seriousness of the conduct, whether the teacher has cooperated in relation to any investigations, and whether the teacher has demonstrated insight into his conduct.
[7] Queensland College of Teachers v Genge [2011] QCAT 163, [14].
Prior to Mr BanyaiÕs conduct giving rise to the disciplinary action, he had undertaken Code of Conduct training required by the QCT for all registered teachers. He has now been removed from teaching as a result of his employment being terminated for approximately 13 months.[8]
[8] As at 23 March 2013, the date of the hearing.
There is no material before the Tribunal to indicate that Mr Banyai has undertaken any counselling or further courses by way of professional development since termination of his employment, to address the issues arising from the circumstances of this matter Ð inappropriate contact (via Facebook communication) and maintaining proper professional boundaries between teacher and student.
Any steps taken by Mr Banyai to address the issues of inappropriate contact with students, and professional boundaries between teacher and student are relevant to Mr Banyai being able to demonstrate insight into his conduct giving rise to the proposed disciplinary action.
The proposed sanction of 12 months with conditions is consistent with other decisions previously determined by this Tribunal. The decision of Queensland College of Teachers v Chambers[9] involved inappropriate contact via Facebook and a failure to report suspected harm to the student resulting from disclosures made. The Tribunal found that the events which occurred were Òof a serious natureÓ and involved Òsignificant breaches of the relationship of trust which is reposed in a teacher by parents and the communityÓ.[10] The Tribunal ordered that the teacherÕs registration be cancelled with conditions for effectively a period of 14 months.
[9] [2012] QCAT 491.
[10] Queensland College of Teachers v Chambers [2012] QCAT 491, [17].
The decision of Queensland College of Teachers v Genge[11] also involved inappropriate communications (via Facebook) with further allegations involving the teacher attempting to engage in an inappropriate physical relationship with the student. The Facebook communications involved invitations to meet. The Tribunal ordered a cancellation of the teacherÕs registration for (effectively) a period of nine months. In the decision of Genge the Tribunal considered the comprehensive submissions in relation to sanction including a report provided from a psychologist referring to counselling sessions concerning the conduct and relevant personal circumstances of the teacher. This was considered relevant to the Òblurring of teacher/student boundaries complicated by [the teacherÕs] brother and his friends attending the school at which [the teacher] taughtÓ.[12]
[11] [2011] QCAT 163.
[12]Queensland College of Teachers v Genge [2011] QCAT 163, [16]. The decisions of Queensland College of Teachers v Pau [2010] [2010] QCAT 493 and Queensland College of Teachers v Jones [2010] QCAT 543 also involved inappropriate communication between a teacher and student and a cancellation of the teacherÕs registration for a period of 12 months (in both matters). The decision of Jones involved more serious conduct in that the teacher ignored directions from the school by continuing to make inappropriate and offensive comments to students. In the decision of Pau the teacher (from the nature of the communication) intended to pursue a relationship with the student.
We are satisfied that a cancellation of Mr BanyaiÕs registration for a period of 12 months with conditions to be noted on the QCT register is appropriate in all of the circumstances. The period of cancellation is consistent with former decisions of the Tribunal and is sufficient as a general deterrence to the teaching profession in respect of Mr BanyaiÕs inappropriate conduct. It is also appropriate given that Mr Banyai has cooperated with the investigation by making full admissions to the QCT.
The appropriate order is that Mr BanyaiÕs registration is cancelled until 4 December 2013, being 12 months from the date the statement of agreed matters was signed by Mr Banyai with conditions as proposed to be entered on the register.
Non-publication order
The Tribunal has the power under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 to prohibit the publication of information that might enable a person or people such as the former students involved in the Facebook communication with Mr Banyai to be identified in circumstances where it would not be in the interests of justice to identify their names.
The former students have participated in the Facebook communication. The Tribunal has also made findings about Mr BanyaiÕs conduct (and he has admitted to the inappropriate conduct) that demonstrates an active participation (by Mr Banyai) in the Facebook communication with the former students. The former students were only 14 to 15 years of age at the time of the incident. There is no public interest to be served by disclosing the names of the former students previously under Mr BanyaiÕs pupillage.
Publication of the name of the school where Mr Banyai has taught (involving the former students) may make it possible to identify the students involved in the incident Ð the former students were in Mr BanyaiÕs class in the Brisbane school. The Tribunal therefore prohibits the publication of the names of the former students and the name and address of the school attended by the former students where Mr Banyai was employed as a teacher at the time of the inappropriate conduct.
Mrs Robyn Oliver, Member
I have read the reasons of the majority and although I agree with the factual matters concerning Mr BanyaiÕs behaviour, regrettably I am unable to agree with the proposed period of time Mr Banyai should be prohibited from registration as a teacher.
I am of the view that the appropriate sanction in this case is a prohibition from registration for six months from the date of the signing of agreed facts which was 5 December 2012 for the following reasons.
In Queensland College of Teachers v Genge[13] the misconduct took place over a period of 12 weeks. Miss Genge engaged in inappropriate communication via Facebook with a male year 12 student. The Tribunal was satisfied that Miss Genge intended to engage in a physical relationship with the student. Even though the QCT sought a sanction of a four year prohibition before Miss Genge be permitted to reapply for registration the Tribunal made an order cancelling Miss GengeÕs registration for nine months, with a further nine months already out of the profession. In my view this conduct is more serious than the matter under consideration here.
[13] Queensland College of Teachers v Genge [2011] QCAT 163.
In the Queensland College of Teachers v Chambers[14] the Tribunal imposed a sanction of three months. In this case the teacher had inappropriate contact with a 12 year old female student on both Facebook and via phone texting. Mr Chambers was 31 years old at the time of the misconduct. The facts in this case were that it was school holidays and a 12 year old student led Mr Chambers to believe that she was pregnant through rape by a cousin and that she would self harm if he told anyone. Mr Chambers met with the student without parental knowledge or permission, drove her to his home in his car, provided her with a pregnancy test, and did not seek to report or discuss these issues with any of his superiors. Mr ChamberÕs three month sanction began following a suspension which led to a total of 14 months out of the teaching profession, albeit of his own volition. The QCT sought a sanction of two years for this behaviour.
[14] Queensland College of Teachers v Chambers [2012] QCAT 491.
In the case of Queensland College of Teachers v Pau[15], referred to in paragraph 26 above, the basic facts involved inappropriate hand written and email communication between the 39 year old teacher and a 17 year old female student. In this case the QCT sought a sanction of not less than three years. The Tribunal imposed a sanction of 12 months from the date of the hearing, August 2010, in addition to a condition he receive psychological counselling prior to reregistration.
[15] Queensland College of Teachers v Pau [2010] [2010] QCAT 493.
In the case of College of Teachers v Jones[16], also referred to in paragraph 26 above, the teacher engaged in making inappropriate sexual comments to year five female students in his care. He was 56 years old at the time. The QCT sought a 12 month sanction, For this conduct the Tribunal imposed a 12 month sanction from November 2011 with the teacher having been out of the teaching profession form May 2009. He too had a condition for psychological counselling placed on his ability prior to reregistration as a teacher.
[16] Queensland College of Teachers v Jones [2010] QCAT 543.
In Queensland College of Teachers v Teacher BAM[17], the Tribunal imposed a sanction of 12 months from the date of the order, November 2012. In this case, Teacher BAM engaged in a series of inappropriate conversations with two female students in his care, over a period of approximately 10 months. Teacher BAM held a senior leadership position in his school at the time of the inappropriate behaviour. His sanction was to begin at the same time as his suspension. Despite the seriousness of this behaviour the teacher did not experience any time out of teaching as a result of his suspension.
[17] Queensland College of Teachers v BAM [2012] QCAT 694.
Having regard to the facts and circumstances in this case, there is a striking resemblance between the conduct of Mr Banyai and that of Mr Chambers. Both were 31 years of age with similar lengths of time teaching, both were involved in similar misconduct occurring over the Christmas holiday period. Both teachers displayed inappropriate behaviour for only a short period of time, and both were cooperative with the investigative process. Both were out of the teaching profession for a significant length of time prior to being sanctioned.
The significant differences here lie in the sanctions imposed for the seriousness of the behaviours displayed, the experience of the teachers involved and the age of the children harmed. Teacher BAM received 12 months sanction and no time out of the profession. Mr Chambers received three months sanction, having had 14 months out of the teaching profession although by his own choice.
Section 4(d) of the Queensland Civil and Administrative Tribunal Act 2009[18] imposes an obligation on the Tribunal to ensure that like cases are treated alike. In my view the sanction I would impose achieves this object.
[18] QCAT Act 2009, s 4(d).
Consistent with the cases referred to above an appropriate sanction for Mr Banyai is a disqualification of six months from 5 December 2012, Mr Banyai having been out of the teaching profession since February 2012.
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