Queensland College of Teachers v Clough
[2011] QCAT 125
•25 March 2011
| CITATION: | Queensland College of Teachers v Clough [2011] QCAT 125 |
| PARTIES: | Queensland College of Teachers |
| v | |
| Mr Michael Stanislaw Clough |
| APPLICATION NUMBER: | OCR075-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 20 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Lisa O'Neill, Presiding Member Mr Stuart MacDonald, Member Ms Margaret McLennan, Member |
| DELIVERED ON: | 25 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Pursuant to section 161(2) of the Education (Queensland College of Teachers) Act 2005: That Michael Stanislaw Clough be prohibited from reapplying for registration for a period of three years. [1] That the following notation be entered in the register of approved teachers: That prior to reapplying for registration as a teacher Michael Stanislaw Clough consult a registered psychologist for counselling or therapy and he provide the psychologist for counselling or therapy with the following documents: (i) Report from the investigation by Queensland College of Teachers; (ii) QCT submissions dated 10 May 2010; (iii) This order. [2] That the counselling or therapy covers the following topics: (a) Awareness of what is and what is not appropriate communication and comments to make to students; (b) Awareness of what is and what is not appropriate instances when a teacher may physically touch a student; (c) Awareness of the nature of the student, parent and community trust inherently invested in a teacher; (d) Awareness of behaviour which may compromise the professional standing of a teacher and the profession of teaching; and (e) Understanding and full adherence to the Queensland College of Teachers Code of Ethics. [3] That the names, addresses and schools of the complainant children be subject to a non-publication order pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009. |
| CATCHWORDS: | Disciplinary – suitability to teach – cancellation Education (Queensland College of Teachers) Act 2005, ss 92(1)(h), 161(2) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Queensland College of Teachers represented by Mr John Gormley, Queensland College of Teachers. |
| RESPONDENT: | Mr Michael Stanislaw Clough was not represented. |
REASONS FOR DECISION
Reason for Hearing
On 19 March 2010 following a referral from the employing authority the PP&C Committee decided to refer the matter to QCAT pursuant to section 115(1)(b) of the Act.
QCAT conducted a hearing to determine whether there existed a ground for disciplinary action against Michael Stanislaw Clough under the Act. The ground for disciplinary action considered is pursuant to section 92(1)(h) ‘the teacher is not suitable to teach’.
A relevant teacher means a person who was or is an approved teacher (Schedule 3 to the Act). Schedule 3 to the Act defines an approved teacher as meaning a person who is a registered teacher or a person who holds a permission to teach.
A “former approved teacher” means a person who was an approved teacher or former holder of a permission to teach (Schedule 3 to the Act.)
If QCAT decides a ground for disciplinary action exists against a “former approved teacher” the powers of the Tribunal are set out in section 161 of the Act.
While the standard of proof in disciplinary proceedings is the civil rather than criminal standard, it is at the higher end of the scale according to the Briginshaw[1] standard. The Committee has made its findings on the balance of probabilities having regard to the serious consequences on the respondent teacher.
[1] Briginshaw v Briginshaw (1938) 60 CLR 336.
Background
Michael Stanislaw Clough was registered as a teacher in 2007. During 2008 he was a teacher at a co educational independent School.
It is alleged that in 2008 he:
(i)had an inappropriate conversation with a student “A” during a year 11 Religion class where he discussed her astrological star sign and indicated that she would be “fiery and spicy in the bedroom”;
(ii)engaged in inappropriate telephone communication including text messages with Student “B”;
(iii)had inappropriate physical contact with Student “B” at a public park by touching her hair, reaching behind her neck and pulling her towards him and saying he “wanted her”;
(iv)breached policies of the employing authority and the QCT as the registration authority aimed to protect the welfare and best interests of children and to uphold the professional standards of children.
Mr Clough’s teacher registration was suspended by the College and QCAT continued the suspension on 12 April 2010. On 12 April 2010 Mr Clough requested that his name was removed from the register. He was therefore a “former approved teacher” at the time of the hearing.
[10] The material before the tribunal included an investigation report containing statements from teaching staff and students from the school and a detailed investigation report prepared by an independent investigator.
[11] Mr Clough did not give oral evidence before QCAT or attend at the hearing but provided a detailed response to the allegations. He described the allegations as a “wider campaign by a former group of students against school staff and well known within the school”.
[12] Written submissions made on his behalf said:
(a) He admitted that astrology was discussed in class. However, this was part of a wider discussion of religions and spirituality other than Christianity. He made no response to the specific allegation;
(b) He said the allegation that he had engaged in inappropriate telephone communication including text messages with Student “B” was false;
(c) He said the fact that text messages were sent by the student to him was indicative of the student’s impropriety. He said familiarity between himself and the student was the result of the fact that she was the girlfriend of his grandmother’s nurse. He admitted that he did not tell the school about the messages which he regarded as unwelcome. The fact that the messages were flirtatious reflects the student’s improprieties and improper advances. He found the messages unwelcome. In hindsight he said he should have reported the advances by the student to the school.
(d) He denied the allegation that he had attempted physical contact with Student B saying that while the investigator put emphasis on the fact that Mr Clough had changed his story it was not surprising that he could not recall details many months later.
(e) The investigator’s finding that he had breached the policies of the employing authority was incorrectly founded as the earlier allegations were false.
(f) While he was not critical of his former employer he was critical of the QCT and said “if being a teacher means associating with the individuals who have caused him harm then he did not want to be a teacher again”.
[13] While Mr Clough gave an explanation for the inclusion of discussion of astrology he provided no denial or context for the assertion that he had referred to student A as “fiery and spicy in the bedroom”. Having regard to the statements of the teachers and students to the investigator the Tribunal is satisfied that allegation 1 is substantiated. However this allegation in isolation is minor and had that been the only allegation it would not be enough to warrant attention by the Tribunal and could have been dealt with by the PP&C.
[14] With respect to allegation 2 the student’s statement to the investigator was that the teacher sent about 50 texts to her. There is no dispute that they were personal in nature including information that Mr Clough had cheated on his girlfriend. The student said she sent about 30 text messages to the teacher a week. There is no dispute that they were flirtatious in nature. Mr Clough agreed in his submission that the communication directed to him by the student was “inappropriate” and demonstrated “impropriety” by her.
[15] The employing authority provided Mr Clough an opportunity to respond to the allegations and his response was contained in the material before the Tribunal. In his response made 23 March 2009 Mr Clough said that the student “liked me, fancied me, as did half of her group”. He said this was not an issue for him as he knew that she had a boyfriend. Later he said “I have hundreds of texts that would place [the student] in a very difficult situation with her boyfriend”.
[16] In placing blame for the communication on the student Mr Clough:
(a)admitted the communication had occurred;
(b)that the subject matter was intimate in nature;
(c)that he was aware that the student had feelings for him; and
(d)that despite his awareness that the communication was inappropriate he did not report it or take steps to stop it.
[17] In making these admissions Mr Clough showed a lack of awareness of his own role as an active participant in the communication. Had it been genuinely unwelcome one would have expected Mr Clough to prevent it by changing his mobile telephone number and/or blocking the receipt of calls from the student’s telephone number. There is no evidence that he did so.
[18] A teacher with appropriate boundaries, having been made aware of the student’s infatuation, would ensure that communication with the student was formal and transparent. Mr Clough cannot deflect attention from his role by blaming the student. He was not a passive victim of adolescent infatuation. He was an active participant and his ongoing participation encouraged the student.
[19] Where a student engages in inappropriate communication with a teacher the onus is on the teacher to report the communication and desist from engagement in it. Mr Clough did not do so and by that act alone shows immaturity and poor judgement. Given the age difference one would expect the teacher to take active steps to enforce and model appropriate boundaries. By engaging in communication with the student that was not school related the teacher acquiesced and encouraged it.
[20] Mr Clough’s submission to the Tribunal fails to recognise the power imbalance between teacher and student.
[21] The inappropriate text and internet communication is sufficient to establish allegation 4 that is, that he breached policies of the employing authority and the QCT.
[22] However, more serious is the blurring of the teacher student relationship. Mr Clough described the student as his “close friend”. Many teachers face the dilemma of how to behave towards students they meet outside school such as in sporting clubs, churches, shops or socially. Teachers are not expected to live socially isolated lives but they are expected to behave professionally. Such behaviour includes ensuring that the interaction is not flirtatious or intimate and that it maintains some professional distance within and outside the classroom.
[23] While Mr Clough denied the allegations by the Student B he did not attempt to explain or deny the statement provided by KM, the Deputy Principal at the School. KM said that she had cause to speak to Mr Clough about some aspects of his teaching. One was the allegation that he had discussed inappropriate matters with the class such as talk about “boyfriends and girlfriends”. She advised him to keep his personal life away from the school. When she counselled him he did not deny the suggestion that such talk had occurred. She specifically spoke to him about the dangers of internet or social networking communication with students. Unfortunately Mr Clough ignored this advice.
[24] His failure to take responsibility for the development of a close relationship with a student and communicating with her about private matters suggests that he is not sufficiently mature or insightful to work with children and young people at this point in time.
[25] With regard to allegation 3 the student gave a detailed statement about the events of the day saying that Mr Clough took her to the park, “he made a move on me. He got my hair out of my face, and put his hand behind my neck and pulled me towards him”. She said he commented that she was pretty, touched her hair and attempted to kiss her before the student pulled away.
[26] During the investigation Mr Clough gave 3 versions of events to the investigators. It is impossible to put much weight on his latest version in light of his earlier evidence and the evidence of the student should be preferred. The attempt to engage in physical contact with student B is a further breach of his responsibilities as a teacher that suggests that he is not suitable to teach.
[27] The conduct of Mr Clough in attempting to establish and maintain an intimate physical relationship with a student was a breach of appropriate student teacher boundaries. It goes to the very heart of the relationship of trust bestowed by the community on a teacher to care for and nurture students. It is not behaviour that would be expected of a teacher.
[28] In view of that breach of trust by Mr Clough the tribunal is satisfied that a ground for disciplinary action exists and that Mr Clough is not suitable to teach within the meaning in section 92(1)(h).
The Penalty
[29] In written submissions prior to the hearing the QCT sought that Mr Clough (who is not currently registered) be prohibited from reapplying for registration for a period of 3 years.
[30] Mr Clough was a mature teacher being 30 years old at the time of the misconduct in 2008. Although he was recently registered as a teacher there was a significant age gap of about 15 years between himself and the student B.
[31] He had been warned by the Deputy Principal about the dangers of on line communication but failed to heed this warning.
[32] In support of his case Mr Clough provided his positive feedback from his student placement. There is ample evidence before the Tribunal that Mr Clough was an effective and competent teacher. However with that gift comes responsibility for the young and the vulnerable students entrusted to the teacher’s care. Mr Clough breached that trust when he engaged in inappropriate communication with Student B and attempted to engage in physical contact with her.
[33] Mr Clough offered no explanation for the conduct save that it was part of a “wider campaign by students against teachers”. He provided no evidence from co workers or others to support this submission.
[34] He failed to express remorse and contrition and sought to blame student B for the communication.
[35] The jurisdiction exercised by the Tribunal is protective, not punitive. There are dual reasons for this. In Clyne v New South Wales Bar Association[1960] HCA 40; (1960) 104 CLR at 201-202, the High Court said:
Although it is sometimes referred to as the “penalty of disbarment” it must be emphasized that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that the abuse of privilege may not lead to loss of privilege.
[36] Teachers have a great community trust conferred upon them. For example, they are not required to hold a Blue Card (positive notice pursuant to the employment screening provisions of the Commission for Children and Young People and Child Guardian Act 2000) for the purpose of holding teacher registration. A corollary of these privileges is that obligations are imposed. There is an expectation that they will maintain very high standards.
[37]The objects of the Act are set out in section 3(1) of the Act. They are:
(a) to uphold the standards of the teaching profession; and
(b) to maintain public confidence in the teaching profession; and
(c) to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.
(2) The objects are to be achieved mainly by--
(a) establishing the Queensland College of Teachers; and
(b) conferring on the QCT functions and powers about--
(i) granting registration or permission to teach to persons; and
(ii) taking disciplinary action against approved teachers; and
(iii)monitoring compliance with and enforcing this Act; and
(c) establishing the Office of the Queensland College of Teachers to help the QCT in the performance of its functions.
[38] The disciplinary process is therefore partly child protection legislation designed to ensure that only those suitable to do so work with children.
[39] Having regard to the seriousness of the misconduct which involved breaches of trust with 2 students, and Mr Clough’s failure to mitigate the seriousness of it, or suggest strategies for avoiding a repeat of this conduct, the committee is satisfied that he should be prohibited from reapplying for a period of 3 years from the date of the hearing.
[40] To assist him to gain insight into his conduct and to ensure that he is suitable to return to teaching the Committee believes that he would be assisted by a course of counselling or therapy with specific focus on managing future teacher/student relationships.
[41] Clearly the type of counselling envisaged in the condition will take some time to achieve its purpose and is unlikely to be effective without considerable dedication and self examination on behalf of the teacher. There is no evidence that Mr Clough has sought treatment to date so any counselling will commence post the hearing.
[42] On reapplying for registration Mr Clough will need to demonstrate that he has learned from this experience and has identified strategies to avoid a repeat of this behaviour.
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