Queensland College of Teachers v Carroll

[2012] QCAT 395

CITATION: Queensland College of Teachers v Carroll [2012] QCAT 395

PARTIES:	Queensland College of Teachers (Applicant)
v
Lisa Gay Carroll (Respondent)

APPLICATION NUMBER: OCR029-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Kerrie O’Callaghan, Senior Member
Kate Buxton, Member
Robyn Oliver, Member

DELIVERED ON: 9 August 2012

DELIVERED AT: Brisbane

ORDERS MADE:

Under section 161(2)(d) of the Education (Queensland College of Teachers) Act 2005 a notation be included in the register of approved teachers that, should Lisa Gay Carroll reapply for registration as a teacher, such application include a psychological report addressing the following:

a)     Awareness of what is and what is not appropriate language and communication with students;

b)     Awareness of what are and what are not appropriate instances in which a teacher may physically touch a student;

c)     An in depth examination of the extent and nature of the student, colleague, parent and community trust inherently invested in a teacher;

d)     Awareness of the trust and power granted to a teacher;

e)     Awareness of behaviour which may compromise the professional standing of a teacher and the profession of teaching;

f)   Understanding and full adherence to the Queensland College of Teachers Code of Ethics.

The psychologists’ report to include:

(a)    An indication from the psychologist about whether the psychologist is satisfied that Lisa Gay Carroll has adequately understood and addressed the above points.

(b)   Reference to the psychologist being provided with copies of:

·    The QCAT disciplinary decision;

·    The QCT referral.

CATCHWORDS: OCCUPATIONAL REGULATION – TEACHER – Where teacher intimidated and yelled at students – Pushing and striking out – Whether teacher suitable to teach – Conduct below the standards reasonably expected of a teacher – penalty – therapeutic conditions

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

1. Ms Carroll began teaching primary school aged children in 1988.  Her employment was terminated by the Department of Education and Training in October 2010 following a series of incidents which took place whilst she was teaching Information and Communication Technology classes at a State School.  She is no longer a registered teacher, having allowed her registration to lapse in 2011.

2. In this disciplinary referral[1], the Queensland College of Teachers seek a determination that Ms Carroll is not suitable to teach.  The College has identified four allegations against Ms Carroll:

   1.On or about 20 November 2008, whilst employed as a teacher at a State School, Ms Carroll struck year 7 student to the back of his head during an ICT lesson;

   2.On or about 2 September 2009, whilst employed as a teacher at a State School, Ms Carroll shook a year 3 student by the shoulders and struck him on the left arm, during an ICT lesson;

   3.On or about 12 November 2009, whilst employed as a teacher at a State School, Ms Carroll pushed on a year 7 student’s chair, causing him to jump/fall off his chair; and

   4.On or about 15 February 2010, whilst employed as a teacher at a State School, Ms Carroll behaved in the manner which upset and scared students in a year 5 ICT class as follows:

   a)    Yelling at students and telling students who weren’t shutting their computers down and pushing their chairs in “it’s not brain surgery, it’s easy peasy”;

   b)    Telling off a student with words to the effect of “well what do you want me to do about it” after he had sought help from Ms Carroll when his password was not working;

   c)    Yelling at a student because he forgot his password.

   [1]That a ground for disciplinary action has been established under the Education (Queensland College of Teachers) Act 2005 (the Act).

3. The College asks the Tribunal to find that Ms Carroll be prohibited from re-applying for registration as a teacher for a period of at least 18 months.  The College also asks that, before reapplying for registration, Ms Carroll be required to obtain a report from a psychologist relating to particular aspects of her behaviour.

The evidence

1. Although Ms Carroll did not agree with the facts alleged by the College, neither did she provide any alternative evidence.  Ms Carroll was given an opportunity to file material in response to the allegations made.  However, she has not filed any material nor did she indicate a willingness to appear at an oral hearing.

2. The application therefore proceeded on the basis of the material filed by the College, being the investigation report together with transcripts of the various Departmental interviews including with Ms Carroll, various students and, in some cases, their parents.  Ms Carroll was interviewed in relation to each of the first three incidents although the material does not disclose any record of interview in relation to the final incident.  The submissions prepared by the College made references to the extracts of the various records of interview which support the factual allegations.[2]

   [2]        Submissions of the College filed 18 May 2012 pages 7 to 13.

3. In respect of each of the four allegations the Tribunal is satisfied that, as a matter of fact, each of them occurred as described by the College.  There is sufficient evidence, which Ms Carroll has not contradicted, to prove each allegation.

4. The College submits that Ms Carroll is not suitable to teach[3] as she poses an unacceptable risk of harm to children[4] and as her conduct does not satisfy a standard of behaviour generally expected of teachers[5].  

   [3]        Section 12 of the Act.

   [4]        Section 92(1)(h) of the Act; see also M v M [1988] HCA 68; (1988) 166 CLR 69.

   [5]        Section 12(3) of the Act.

Law to be applied

1. This tribunal must now decide whether or not Ms Carroll is suitable to teach by answering two questions:

   (i)Does Ms Carroll’s behaviour satisfy the standard of behaviour generally expected of a teacher?

   (ii)Is Ms Carroll a person suitable to work in a child related field?

2. The statutory framework which makes those two questions relevant comes from sections 12 and 92 of the Act.  The grounds for disciplinary action are outlined in section 92 of the Act where section 92(1)(h) contains the ground that “the teacher is not suitable to teach”.  Section 12 of the Act invites consideration on a number of factors in determining suitability to teach.  A person is not suitable to teach if she behaves in a way that does not satisfy the standard of behaviour generally expected of a teacher[6] or if she is not suitable to work in a child related field[7].

   [6]        Section 12(3) of the Act.

   [7]        Section 12(1)(b) of the Act.

Standard of behaviour generally expect of a teacher?

1. Having regard to the standards of behaviour generally expected of a teacher, and particularly one of primary school aged children, we are satisfied that the incidents are sufficiently serious to satisfy section 12(3) in that Ms Carroll behaved in a way that did not satisfy the standard of behaviour generally expected of a teacher. 

2. Her behaviour has been characterised in the submissions of the College as “lashing out” at young vulnerable primary school aged children both verbally and physically.[8]  The College invited the Tribunal to conclude that Ms Carroll had been physically threatening and harmful.  However, it is the view of the Tribunal that the proper characterisation of these incidents is that, although repeated, they were more in the nature of intimidation rather than being overtly physical.

   [8]        Submissions of the College filed 18 May 2012 paragraph 119.

3. Ms Carroll’s conduct demonstrated that, particularly during the cluster of events which took place at the end of 2009 and beginning of 2010, she was frustrated with the particular circumstances of the classroom.  These circumstances included computer passwords frequently needing to be reset and students not knowing their passwords.  When confronted with these circumstances, Ms Carroll failed to demonstrate the skills and mechanisms one would expect of a teacher who will inevitably face such frustrations from time to time.  She was unable to restrain her anger or engage effective strategies to control her frustration.  Her conduct was not appropriate, especially in circumstances where, as with allegation two, she struck out at a very young child.  Despite there being no serious assertion that that child was harmed, the conclusion which necessarily follows is that the conduct was unacceptable.

Suitable to work in a child related field?

1. Having found that Ms Carroll’s conduct did not meet the generally accepted standard, we do not also need to conclude that she is unsuitable to work in a child related field.  Her conduct would not attract that finding in any event.  To find that, we would need to be satisfied that her conduct gave rise to an unacceptable risk of harm to children in the way described by the High Court in M v M.[9]  The evidence is that Ms Carroll’s conduct was, from time to time, intimidating.  However, as there is no evidence that any harm was ongoing or of sufficient severity to meet this test it is not appropriate to make a finding that Ms Carroll is not suitable to work in a child related field. 

   [9]        Supra.

Conclusion on Disciplinary Referral

1. The Tribunal finds that grounds for disciplinary action against the teacher have been established under section 92(1)(8) of the Act and finds that Ms Carroll is not suitable to teach.  Her behaviour has fallen below the standard which the community would generally expect of a teacher with her experience and correlating responsibilities.  As Ms Carroll is a former approved teacher the Tribunal will consider penalty under s 161 of the Act.

Penalty

1. The College asks the Tribunal to prohibit Ms Carroll from reapplying for registration for a period of not less than 18 months and to impose a condition upon any future reapplication for registration requiring Ms Carroll to obtain a psychologist’s report about both her behaviour and her insight.

2. In support of these sanctions the College relies on the following observations:

   a)Ms Carroll was an experienced teacher;

   b)Ms Carroll has engaged in the pattern of behaviour over many years of becoming frustrating with young students and then reacting angrily towards them via abusive language and/or striking them.  Some of these incidents pre-date the referred allegations and have been dealt with in the past by her employer;

   c)Ms Carroll has not sought to or been able to curb her aggressive behaviour towards young students, despite being repeatedly disciplined for this behaviour and being provided with training and counselling by her employer;

   d)Ms Carroll has demonstrated no insight into her behaviour and expressed no remorse. 

3. In terms of comparative cases the College submitted that no case is directly comparative but that Ms Carroll’s behaviour was more serious than in the case of Queensland College of Teachers v Doherty [2010] QCAT 614, delivered 9 November 2010. In that decision the teacher was prohibited from reapplying for registration as a teacher for a period of 12 months following nine separate incidents involving ridiculing a student’s sexuality, swearing, making inappropriate comments about a student’s physical appearance, behaving in a reckless manner and behaving in a manner which made students feel uncomfortable in several ways. We take the view that Mr Doherty’s case is not comparable or is in any event significantly more serious because of the appreciable risk of harm and range of inappropriate behaviours.

4. In Queensland College of Teachers v Smith [2011] QCAT 704, delivered on 8 December 2011, the teacher was alleged to have engaged in five separate allegations of inappropriate contact, distribution of an inappropriate image (of a naked or scantily clad woman), engaging in inappropriate physical contact by grabbing a male student by the collar or back of his shirt and pulling him backwards and engaging in inappropriate communications with students on a number of occasions by making comments of a sexual nature to particular students. In that instance a period of prohibition upon registration to teach was not sought by the College as it submitted that the behaviour would not be such as to warrant such cancellation. Again, we consider that this behaviour is more serious than Ms Carroll’s conduct.

5. We mention these decisions because this Tribunal is obliged, to the extent possible, to treat like cases alike.  Having said that, no one disciplinary matter is identical to any other.  We must form our own view as to whether, a ground for disciplinary action having been established, it is appropriate to take any further steps.  Indeed, taking no steps is one of the actions available under section 161 of the Act.

6. In addition to the period of prohibition, the College has submitted that a notation should be made on the register to the effect that if Ms Carroll reapplies for registration a psychologist’s report which addresses a variety of matters arising from the allegations which have been accepted by the Tribunal should accompany the application.  We support such a condition as it is an appropriate method of addressing the unacceptable behaviours and ensuring that Ms Carroll does not re enter a classroom before a professional assessment of her psychological capacity to do so has been undertaken. 

7. The Tribunal considers a notation should be made on the register requiring a psychologist’s report to accompany any application for re-registration addressing Ms Carroll’s understanding of the following matters:

   a)Awareness of what is and what is not appropriate language and communication with students;

   b)Awareness of what are and what are not appropriate instances in which a teacher may physically touch a student;

   c)An in depth examination of the extent and nature of the student, colleague, parent and community trust inherently invested in a teacher;

   d)Awareness of the trust and power granted to a teacher;

   e)Awareness of behaviour which may compromise the professional standing of a teacher and the profession of teaching;

   f)Understanding and full adherence to the Queensland College of Teachers Code of Ethics.

8. We do not consider that Ms Carroll should be prohibited from reapplying for registration as a teacher for any period.  We come to this view having regard to the history of Ms Carroll’s performance, including that dating back prior to 2008, and in the context of the College’s submission that, in a nutshell, Ms Carroll has not learned from her mistakes.  However, we have also considered Ms Carroll’s long history of teaching, dating back over 20 years, and the fact that the evidence does not support a conclusion that she placed her students at an unacceptable risk of harm.  The involvement of a psychologist as provided for in therapeutic conditions will act as a sufficient gatekeeper to ensure that Ms Carroll does not return to the class room unless and until she is ready to meet the requisite standard of behaviour.

9. The Tribunal orders that the register be noted accordingly and declines to order a prohibition from re-applying for registration to teach.