Queensland College of Teachers v Derbyshire
[2011] QCAT 536
•28 October 2011
| CITATION: | Queensland College of Teachers v Derbyshire [2011] QCAT 536 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Joseph Thomas Derbyshire (Respondent) |
| APPLICATION NUMBER: | OCR133-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 19 October 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Presiding Member Christine Jones, Member Robyn Oliver, Member |
| DELIVERED ON: | 28 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Mr Derbyshire’s teacher registration is cancelled. 2. Mr Derbyshire is prohibited from applying for registration or permission to teach for a period of 3 years commencing from 5 July 2011. 3. That the register be endorsed with a notation that any application of the respondent teacher for re-registration be accompanied by a psychologist’s report which includes assessment of Mr Derbyshire’s appreciation of 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. Risk assessment and early issue identification of potentially problematic situations and venue as well as initiating realistic solutions for avoiding the risk of harm to students; e. The extent and nature of the student, colleague, parental and community trust inherently invested in a teacher or tutor; f. Personal and social behaviour that would compromise the professional standing of a teacher and a profession of teaching; g. What constitutes inappropriate communication; h. Understanding of the effect of inappropriate relationships with students; i. The trust and power granted to a teacher; j. Understanding of and importance of full adherence to the Queensland College of Teachers Code of Ethics. The psychological report to include: (a) an indication by the psychologist about whether the psychologist is satisfied that Joseph Thomas Derbyshire has adequately understood and addressed the above points. (b) Confirmation of the psychologist being provided with copies of: (i) This decision; (ii) The ‘Statement of Agreed Matters and Matters remaining in Dispute between the Parties’. |
| CATCHWORDS: | DISCIPLINARY REFERRAL – FITNESS TO TEACH – where inappropriate personal friendship and then sexual relationship between teacher and student from school at which teacher formerly and recently taught –where teacher recently registered and inexperienced Queensland College of Teachers v Borchardt [2010] QCAT 432 |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard on the papers pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The Queensland College of Teachers (QCT) referred a disciplinary proceeding to the tribunal for a determination whether a ground for disciplinary action against Mr Derbyshire (the teacher) has been established under the Education (Queensland College of Teachers) Act 2003 (the Act).
The teacher is 26 years of age. He was provisionally registered as a teacher in May 2009. His registration has been suspended since July 2011, but is current until 2013. Therefore, Mr Derbyshire was an approved teacher at the time of the hearing.
There is limited dispute between the QCT and the teacher about the facts.
In August 2010, while teaching at a Brisbane school he became known to a Year 12 female student. Although he did not teach the student personally, the student came to be in classes supervised by the teacher in the lead up to the September school holidays. After term 3 the teacher did not return to teach at the school. The student made contact with the teacher through Facebook in term 4. Thereafter, the teacher and the student communicated through Facebook and subsequently, through mobile text messaging. Casual meetings were arranged.
In October 2010, the teacher and the student arranged to meet. They went together to the QUT Student Guild Bar and subsequently, with other persons, attempted to gain entry to a nightclub. There is a dispute about whether the teacher purchased or gave alcohol to the student at these times, and whether he believed the student was 18 years of age, although she was at the time 17 years of age.
The teacher moved to a regional Queensland city, but the teacher and the student continued text messaging. The texting became flirtatious over time. On 6 November, the teacher came to Brisbane for the weekend and stayed at a hotel. The student met the teacher at the hotel. The teacher and student went to the teacher’s hotel room, where they kissed. There is again a dispute about whether the teacher provided alcohol to the student. Later that night, the teacher and the student had sexual intercourse.
On the following weekend, the teacher again travelled to Brisbane. He visited the student outside at her home. They discussed how much they missed one another. He visited the student at her home again on the following evening, and on this occasion met the student’s father. That evening, the teacher and the student attended a sporting event and a movie. The teacher purchased the tickets. During the movie, the teacher told the student words to the effect of ‘I can’t believe this is happening and you are here, you are so beautiful.’
On that evening, the teacher also began calling the student ‘Narla’ and the student began calling him ‘Simba.’ These are the names of characters from a movie. The teacher took the student home, where they talked and kissed in the car. The teacher said he wanted to see the student again the following day. She agreed. He went to her home on the Sunday and met the student’s family. The two went for a drive to a lookout where they talked and kissed, and the teacher again said words to the effect of ‘I can’t believe you are here.’
The teacher and the student did not see one another again, although texting, phone and email communication continued into 2011.
[10] QCT submits that if the tribunal is satisfied that grounds for disciplinary action exist, that Mr Derbyshire’s registration should be cancelled and he should be prohibited from applying for registration or permission to teach for 5 years from the date of the order.
[11] In a joint statement filed with QCT, Mr Derbyshire concedes grounds for disciplinary action exist and accepts that cancellation of teacher registration as appropriate. He acknowledges the QCT’s position as appropriate.
Applicable Law
[12] Section 92 of the Act provides for grounds for disciplinary action. The grounds include, in section 92(1)(h), that the teacher is not suitable to teach. Sections 11, 12 and 12A set out matters which must be considered when considering whether a person is suitable to teach. Section 12(3) provides that, amongst other things, a person is not suitable to teach, if the person behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher, or otherwise behaves in a way that shows the person is unfit to be granted registration or permission to teach.
[13] Under section 158(1) of the Act, as soon as practicable, after concluding the hearing the Tribunal must decide whether a ground for disciplinary action against the teacher has been established.
[14] If the Tribunal decides that a ground for disciplinary action against an approved teacher has been established, under section 160(2) of the Act, it may do one or more of the following:
(a) decide to take no further action in relation to the matter;
(b) if the teacher's registration or permission to teach is suspended under section 48 or 49--end the suspension;
(c) issue a warning or reprimand to the teacher;
(d) cancel the teacher's registration or permission to teach;
(e) suspend the teacher's registration or permission to teach for a stated time;
(f) make an order requiring the teacher to pay to the college, by way of costs, an amount QCAT considers appropriate having regard to--
(i) any expenses incurred by the college in investigating the matter; and
(ii) the expenses incurred by the college in the proceedings before QCAT;
(g) make an order requiring the teacher to pay to the college, by way of penalty, an amount fixed by QCAT but not more than the equivalent of 20 penalty units;
(h) impose conditions on, or amend or remove conditions on, the teacher's registration or permission to teach;
(i) make an order that a particular notation or endorsement about the teacher be entered in the register;
(j) if QCAT cancels the teachers' registration or permission to teach--make an order prohibiting the teacher from reapplying for registration or permission to teach for not more than 5 years from the day the order is made;
(k) make another order QCAT considers appropriate;
(l) accept an undertaking from the teacher.
Is a ground for disciplinary action established?
[15] Mr Derbyshire engaged in a personal and sexual relationship with a student, which exploited the power and trust afforded to him as a teacher. It is irrelevant that he had left the school shortly before the relationship became personal, and that he had not actually taught the student when at the school.
[16] There are disputes about whether the teacher knew the student was 18 years of age and whether he purchased or supplied alcohol to the student. The hearing was conducted on the papers. The tribunal did not have the benefit of hearing evidence and cross-examination from the teacher and the student.
[17] Whereas it would be inappropriate conduct if the teacher knowingly supplied alcohol to the student while she was under 18 years of age, given the seriousness of the other allegations about the teacher’s conduct, whether or not this occurred will not alter the tribunal’s findings about whether a disciplinary ground exists and considerations about penalty. Accordingly, we do not make findings determining these issues of fact.
[18] The other facts are not in dispute. The teacher was in a position of trust. He breached that trust. He engaged in a personal relationship with the student, involving inappropriate communication by way of Facebook, texting and telephone contact with the student in the course of conducting a personal friendship with her, rather than in the course of a professional relationship and for professional reasons, as well as, meeting with her in the course of his personal relationship; and subsequently then engaging in a sexual relationship with her.
[19] Through this conduct, the tribunal is satisfied that the teacher has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher. The tribunal therefore finds that Mr Derbyshire is not suitable to teach, and therefore, that a ground for disciplinary action has been established.
What disciplinary action should be taken?
[20] The QCT and the teacher filed a joint statement which includes agreement about appropriate disciplinary action. QCT has not referred the tribunal to any similar cases. Earlier in the proceedings, Mr Derbyshire had lawyers acting for him. However, they were not instructed to prepare submissions in response to QCT’s submissions. However, the lawyers advised the tribunal registry that Mr Derbyshire accepted that his name would be removed from the register and he will accept any penalty ‘on the chin’.
[21] The conduct giving rise to the disciplinary ground represents a serious transgression of acceptable standards.
[22] That said, there are some circumstances which the tribunal considers relevant to the penalty to be imposed. The teacher was first registered in 2009. The events leading to this disciplinary action took place from late in the following year. Mr Derbyshire was a young and inexperienced teacher. The situation which developed suggests a degree of naivety and immaturity on the part of the teacher.
[23] There is no suggestion that the student in this case had particular vulnerabilities and nor was the age difference between the teacher and the student as large as was the case in Queensland College of Teachers v Borchardt.[1] The teacher in that matter was aged 58. Also, Mr Borchardt behaved inappropriately towards several female students over a period of two years despite being cautioned about his behaviour, including developing an inappropriate relationship with a student which he exploited by engaging in a sexual relationship with the student shortly after she finished school.
[1] [2010] QCAT 432.
[24] Mr Derbyshire has, since the commencement of the disciplinary process co-operated with QCT, making admissions when interviewed. He reached agreement with the QCT and made a joint submission to the tribunal about agreed and disputed facts, whether a ground for disciplinary action exists and appropriate disciplinary action. His actions have facilitated an early determination of the referral. He is prepared to accept any decision of the tribunal and take it ‘on the chin’.
[25] These actions suggest recognition of the inappropriate nature of the relationship, and a genuine remorse on the part of the teacher. Again, this may be contrasted with the situation in Borchardt where there the tribunal considered there were no mitigating factors. In Borchardt the teacher was prohibited from seeking registration for 4 years from the date of the hearing.
[26] In Queensland College of Teachers v Rudd,[2] a young and inexperienced teacher formed an inappropriate personal relationship with a student who subsequently left the school, maintaining contact by text messaging, e-mail, on-line chat and social networking sites and meeting with the student after she left the school, and offering to become the child’s legal guardian. There was not a sexual relationship. There were mitigating factors, including the inexperience of the teacher. At the time of the hearing, the teacher’s registration had lapsed and a period of 12 months had passed since the teacher’s registration had been suspended. Accordingly, she had not been teaching for 12 months. The tribunal did not impose a period of prohibition on reapplication for teacher registration, although it required a notation to appear on the register.
[2] [2011] QCAT 367.
[27] The current situation is clearly more serious than the Rudd matter, involving also a sexual relationship between the teacher and student. However, it does not have the aggravating factors which existed in Borchardt.
[28] In all of the circumstances, the tribunal considers that cancellation of Mr Derbyshire’s teacher registration and prohibition for three years, from seeking registration and permission to teach is appropriate. The tribunal considers that the three years should commence from the date of Mr Derbyshire’s suspension, that is 5 July 2011, rather than the date of hearing. The tribunal also considers that any reapplication should include a psychologist’s report addressing the issues set out in the tribunal’s orders.
Non-publication order
[29] The tribunal notes that orders were made by the Tribunal on 19 July 2011, prohibiting the publication of the name of the complainant, any other students and the name of the school.
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