Queensland College of Teachers v DCG

[2016] QCAT 29

CITATION: Queensland College of Teachers v DCG  [2016] QCAT 29

PARTIES:	Queensland College of Teachers
v
DCG

APPLICATION NUMBER: OCR133-15

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member O’Callaghan, Presiding
Member Hughes
Dr Grigg, Member

DELIVERED ON: 27 January 2016

DELIVERED AT: Brisbane

ORDERS MADE:

1.    DCG is reprimanded for behaving in ways that do not satisfy standards of behaviour expected of a teacher.

2. The publication of any information that could indentify the children in any way, including their names and addresses, the teacher and the schools involved in the disciplinary matter are prohibited from publication under section 66 of the Queensland Civil and Administrative Tribunal Act 2009.

CATCHWORDS:

OCCUPATIONAL REGULATION – DISCIPLINARY PROCEEDINGS – INAPPROPRIATE COMMUNICATIONS BETWEEN TEACHER AND STUDENT – whether grounds for disciplinary action established – where teacher contacted student and student’s boyfriend via social media about husband’s sexual relationship with student – where communications lacked professional detachment – where behaviour did not compromise any direct teacher-student relationship nor position of trust – where teacher undergone treatment and developed coping mechanisms – where risk of repeat behaviour low – where teacher shown remorse and insight into behaviour – where unblemished record - where objects of Act fulfilled by reprimand   

Education (Queensland College of Teachers) Act 2005 (Qld), ss 3, 12, 92, 160
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66,

Legal Services Commissioner v. Laurie [2011] QCAT 335
Queensland College of Teachers v. Banyai [2013] QCAT 180
Queensland College of Teachers v. Chambers [2012] QCAT 491
Queensland College of Teachers v. Doherty [2010] QCAT 614
Queensland College of Teachers v. Genge [2011] QCAT 163

Queensland College of Teachers v. Paulsen [2015] QCAT 226

Queensland College of Teachers v. Rudd [2011] QCAT 367
Queensland College of Teachers v. WAS [2015] QCAT 61

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

What is this Application about?

1. Even when facing difficult personal circumstances, professional teachers should not inappropriately communicate with students. DCG is a teacher who discovered her husband, also a teacher, was having an affair with a student. DCG then contacted the student and the student’s boyfriend about the relationship via social media over a period of several months.   

2. The Queensland College of Teachers has referred DCG’s conduct to the Tribunal to determine whether there are grounds for disciplinary action and if so, the appropriate sanction.

Is a non-publication order appropriate?

1. Both parties agreed to a non-publication order. It is not in the public interest to publicly identify the children or their schools. DCG’s husband has also been the subject of disciplinary proceedings with a non-publication order arising out of the same facts and circumstances.[1] Allowing publication in these proceedings would negate that previous order.

   [1]        Queensland College of Teachers v. WAS [2015] QCAT 61.

2. It is therefore in the interests of justice to make an order prohibiting the publication of any information in these proceedings that could identify the children in any way, including their names and addresses, the teacher and the schools involved.[2]

   [2]        Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

Is there a ‘ground for disciplinary action’ against DCG?

1. To her credit, DCG has admitted to most of the circumstances of the grounds for disciplinary action. Between November 2013 and April 2014, DCG contacted the student and made posts on social media about the affair. Between March 2014 and May 2014, DCG also contacted the student’s boyfriend via social media about the affair and with a reference to the student’s brother.

2. DCG admits that her conduct did not satisfy a standard of behaviour generally expected of a teacher. The Tribunal agrees. DCG’s communications were inappropriate and did not satisfy a standard of behaviour generally expected of a teacher.[3]

   [3]        Education (Queensland College of Teachers) Act 2005 (Qld), s 12(3)(a).

3. This is because her communications demonstrated a lack of professional detachment.[4] The Standard of Practice relevantly provides that electronic communication with students is unacceptable unless for educational reasons or prior approval has been given.[5] DCG’s communications with the student were of a personal nature and without approval and therefore breached the Standard. DCG’s communications with the student’s boyfriend also unnecessarily denigrated the student and had the potential to harm her.

   [4]        Queensland College of Teachers v. Rudd [2011] QCAT 367 at [30].

   [5]        Department of Education, Training and Employment Standard of Practice.

4. Because DCG’s behaviour ‘does not satisfy a standard of behaviour generally expected of a teacher’,[6] we find that a ‘ground for disciplinary action’ is established – that DCG is ‘not suitable to teach’.[7]

   [6]        Education (Queensland College of Teachers) Act 2005, s 12(3)(a).

   [7] Ibid, s 92(1)(h).

What is the appropriate sanction?

1. The Tribunal must then determine an appropriate sanction for DCG’s behaviour. Both the College and DCG submitted that DCG be reprimanded.

2. The Tribunal has considerable concern about DCG’s behaviour and in particular its potentially harmful impact on the student. There is little doubt that DCG’s behaviour would have been distressing for the student. The community expects a teacher to have sufficient insight to know that this behaviour can harm young people.[8]

   [8]        Queensland College of Teachers v. DTJ [2015] QCAT 443 at [31].

3. Despite the Tribunal’s concerns with the behaviour, the Tribunal considers that a reprimand is an appropriate sanction given the mitigating factors of this case. Critically, the student was never a student of DCG and did not attend the school where DCG taught. DCG therefore did not compromise any direct teacher-student relationship between her and the student, nor any position of trust. DCG did not exploit any power imbalance with the student.  

4. DCG has also undergone treatment and developed coping mechanisms to help prevent any recurrence if confronted with similar stressors.[9]  The expert evidence is that the risk of DCG repeating the behaviour is therefore ‘extremely low and almost non-existent’.[10] She has since been employed as a teacher, without incident. There is therefore no evidence of a risk of DCG repeating the behaviour.

   [9]        Report of Dr Sarah Kay dated 11 September 2014 and Report of Mohammad

   Khayrolomoor, Consultant Clinical Psychologist dated 16 September 2014.

   [10]        Report of Mohammad Khayrolomoor, Consultant Clinical Psychologist dated 16

   September 2014.

5. DCG’s communications were those of a woman scorned: her husband betrayed her and she directed her feelings of hurt and betrayal onto someone whom she perceived to be a source of that betrayal and hurt. While this does not justify her behaviour, it does provide context. 

6. We are therefore satisfied that DCG’s behaviour, although deplorable, was uncharacteristic and confined to the circumstances. DCG has shown remorse and insight into her conduct by her admissions and as a result of seeking professional assistance. She acknowledges the student was a victim of her husband’s intemperate behaviour, as much as herself.[11]

   [11]        Response to The Applicant’s Referral dated 5 October 2015 at page 6.

7. The purpose of these disciplinary proceedings is not to punish, but to protect children and the community.[12] The objects of the Act are to uphold the standards of the teaching profession, maintain public confidence in the teaching profession and protect the public.[13] It is significant that the behaviour did not occur in DCG’s capacity as a teacher. There is also no evidence of a risk of repeating the behaviour. Apart from the current transgressions, DCG has an otherwise unblemished record.

   [12]        Queensland College of Teachers v. Genge [2011] QCAT 163 at [12]; Queensland

   College of Teachers v. Banyai [2013] QCAT 180 at [21].

   [13]        Education (Queensland College of Teachers) Act 2005, s 3(1).

8. Preventing DCG from continuing to teach is therefore not necessary to achieve the Act’s objects.[14] A reprimand is a significant sanction that publicly conveys the Tribunal’s strong disapproval of DCG’s behaviour and serves to deter others.[15] The Act’s objects are therefore fulfilled by reprimanding DCG for her behaviour.[16]

   [14]        Cases where teachers have been suspended for inappropriate communications have

   had aggravating elements including risk to physical safety (Queensland College of Teachers v. Doherty [2010] QCAT 614), sexual connotations (Queensland College of Teachers v. Genge [2011] QCAT 163; Queensland College of Teachers v. Banyai [2013] QCAT 180) and physical contact (Queensland College of Teachers v. Rudd [2011] QCAT 367; Queensland College of Teachers v. Chambers [2012] QCAT 491) - none of these elements is evident in the current case.

   [15]        Legal Services Commissioner v. Laurie [2011] QCAT 335 at [16].

   [16]        Education (Queensland College of Teachers) Act 2005, s 160(2)(c); Queensland

   College of Teachers v. Paulsen [2015] QCAT 226 at [37] and [42] to [43].

What are the appropriate Orders?

1. The appropriate Orders are therefore:

   1.    DCG is reprimanded for behaving in ways that do not satisfy standards of behaviour expected of a teacher; and

   2. The publication of any information that could identify the children in any way, including their names and addresses, the teacher and the schools involved in the disciplinary matter are prohibited from publication under section 66 of the Queensland Civil and Administrative Tribunal Act 2009.