Queensland College of Teachers v Doherty
[2010] QCAT 614
•12 November 2010
| CITATION: | Queensland College of Teachers v Doherty [2010] QCAT 614 |
| PARTIES: | Queensland College of Teachers |
| v | |
| David Doherty |
| APPLICATION NUMBER: | OCR155-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 9 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | M Howard, Presiding Member S MacDonald, Member J Cowdroy, Member |
| DELIVERED ON: | 12 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That publication of the names of the students disclosed in evidence before the Tribunal be prohibited. 2. That under section 161(2)(c) of the Education (Queensland College of Teachers) Act 2005, that David Doherty is prohibited from reapplying for registration as a teacher for a period of 12 months from the date of this order; 3. That under section 161(2)(d) of the Education (Queensland College of Teachers) Act 2005, the following notation be included in the register of approved teachers: Should, after the expiry of the prohibition period, David Doherty reapply for registration as a teacher, it is recommended that such application include evidence, which may be evidence from a psychologist, of 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) Awareness of appropriate discipline techniques with students; d) Awareness of appropriate strategies for achieving student compliance; e) An in depth examination of the extent and nature of the student, colleague, parent and community trust inherently invested in a teacher; f) Awareness of power and trust granted to a teacher; g) Awareness of behaviour which may compromise the professional standard of a teacher and the profession of teaching; and h) Understanding and full adherence to the Queensland College of Teachers Code of Ethics. 4. In the event that David Doherty reapplies for registration as a teacher, it is likely that greater weight will be attached to independent and professional evidence addressing the matters at clause 2. 5. Should any application include a report by a psychologist or other health practitioner, it is recommended that such report include a reference to the report writer being provided with copies of: i) The facts and circumstances; and ii) Bundle of material P1 to P892 6. Except to the extent that section 168 of the Education (Queensland College of Teachers) Act 2005 applies, this notation does not bind the Queensland College of Teachers in making a decision under section 20 of the Education (Queensland College of Teachers) Act 2005. |
| CATCHWORDS : | TEACHERS-suitability to teach- where teacher made inappropriate comments and used inappropriate language towards students- where teacher behaved inappropriately towards students Education (Queensland College of Teachers) Act 2005- ss 12(3)(a), 92(1)(h),158(1), 161(2). |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard on the papers in the absence of the parties.
REASONS FOR DECISION
The Queensland College of Teachers (QCT or the applicant) made a referral to the Tribunal for a determination whether a disciplinary ground is established regarding David Doherty (the respondent), a former approved teacher. The referral was made by QCT under section 97 of the Education (Queensland College of Teachers) Act 2005 (the Act).
The hearing was conducted on the papers in the absence of the parties. However, Mr Gormley, the legal representative for the QCT was contacted briefly by the Tribunal during the hearing to clarify an aspect of QCT’s submissions.
Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), provides that the Tribunal may make a non-publication order prohibiting, among other things, the publication of evidence given before the Tribunal if it considers it necessary for reasons including, to avoid the publication of information which would be contrary to the public interest. The Tribunal may make a non-publication order upon the application of a party or on its own initiative.
The Tribunal made a non-publication order on its own initiative that the names of the students involved in the incidents alleged to establish the disciplinary ground not be published, in order to protect the identity of those students as the identification of the young students concerned would be contrary to the public interest.
Applicable Law
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 sets out matters which must be considered when considering whether a person is suitable to teach. Section 12(3) provides as follows:
(3) Without limiting section 11 or subsection (1) or (2), a person is not suitable to teach if the person--
(a) behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or
(b) otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach.
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. If the Tribunal decides that a ground for disciplinary action against a former approved teacher has been established, under section 161(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) 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;
(c) if QCAT would have made an order cancelling the teacher's registration or permission to teach if the teacher had been an approved teacher--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;
(d) make an order that a particular notation or endorsement about the teacher be entered in the register.
The Facts
David Doherty was first registered as a teacher on 4 January 2001 and was continuously registered as a teacher until 4 March 2009. Mr Doherty resigned as a teacher from the Department of Education, Training and the Arts (DET) on 29 October 2007.
At the time of the incidents referred to below, Mr Doherty was employed by DET as a teacher.
Incident 1
While conducting a Year 9 health and physical education lesson, Mr Doherty was instructing and assisting students about how to put on a harness in preparation for rock climbing activities. Student 1 was having difficulty putting on a harness but declined Mr Doherty’s assistance.
Mr Doherty grabbed Student 1’s harness and tightened it, causing Student 1 to fall to the ground. Student 1 did not sustain any injuries. At this time, Mr Doherty also made comments to other students directed at Student 1, to the effect that ‘don’t think [Student 1] is comfortable with his sexuality. Don’t think [Student 1] has come out yet.’
Incident 2
Mr Doherty was conducting a physical education lesson for a year 6 class. A member of the class, Student 2, was unable to participate in the class due to a sore knee. Mr Doherty asked Student 2 what was wrong with her knee. Student 2 replied that her knee was ‘hot’. Mr Doherty commented that her knees were ‘hot’ in the context of ‘good looking’.
Incident 3
Mr Doherty was conducting a swimming lesson for a combined year 4 and 5 class. Some students were misbehaving during the class.
Referring to the misbehaving students, Mr Doherty said words to the effect of ‘fucking idiots’ and this comment was heard by other students.
Incident 4
Mr Doherty who was a physical education teacher was conducting a football training session for under 10 year olds. Student 3 was taking part in the training session.
Some of the students had straw whistles which had been made that day in an earlier class. Some students were blowing the whistles and this was interrupting the training session. Mr Doherty asked the students to put the whistles away.
Student 3 blew on his whistle after the instruction had been given by Mr Doherty. Mr Doherty told Student 3 to ‘stop that noise or fuck off’ or words to that effect.
Incident 5
Mr Doherty was conducting a physical education lesson for a year 3 class. During the lesson, one of the students was physically bullied by the other students and this incident required management by Mr Doherty.
At the end of the class, Mr Doherty said to the class words to the effect that they were ‘little shits’ and to ‘fuck off and go home’.
Incident 6
Mr Doherty was conducting a physical education lesson for year 6 and 7 students which involved playing a number of softball games. Student 4 was a member of the class.
Towards the end of the lesson, Student 4 was required to field. Student 4 initially did not take the field and only did so following direction from Mr Doherty. Once on the field, Student 4 sat down and did not participate.
On two occasions, Mr Doherty threw the ball in Student 4’s direction for the purpose of encouraging her to stand up. On the first occasion, the ball struck Student 4’s leg. She did not sustain an injury. The second ball missed Student 4. Student 4 then left the field of her own volition.
Incident 7
A parent of a student was at the school and talking to a year 7 student, Student 5. Mr Doherty approached Student 5 from behind and pulled on her bra strap. He then continued walking past Student 5 and the parent.
Student 5 was uncomfortable as a result of this conduct.
Incident 8
Mr Doherty was conducting a physical education lesson for year 2 students. Student 6 was a member of the class.
During the lesson, Mr Doherty told students to sit down on the grass. Student 6 was squatting rather than sitting on the ground. Mr Doherty used his foot to push Student 6 in the chest causing him to fall over. The class laughed. Student 6 did not sustain any injuries.
Incident 9
Mr Doherty had finished conducting a year 7 swimming lesson. After the conclusion of the lesson, the students were getting changed in the change rooms. He called out to identify if there were any students in the female change rooms.
After not receiving a reply, Mr Doherty entered the female change rooms for the purpose of conducting an inspection prior to locking the door. At this time, there were several female students in the change room who were in a dressed state. On seeing the students, Mr Doherty exited the change room.
The conduct referred to in Incidents 1-9 is in breach of the DET Student Protection Policy and the Queensland College of Teachers ‘Code of Ethics.’
Discussion and Decision
Is a ground for disciplinary action established?
The Tribunal considered the factors relevant to determining whether a teacher is suitable to teach. While teaching students, Mr Doherty has ridiculed a student’s sexuality; sworn at and, on other occasions, about students in front of other students; made inappropriate comments about a student’s physical appearance; behaved in a manner which was reckless of the physical safety of students, although none sustained injuries; and behaved in a manner which made students feel uncomfortable in various ways.
The Tribunal is satisfied to the requisite standard that Mr Doherty’s actions demonstrate that he behaves in a manner that does not satisfy a standard of behaviour generally expected of a teacher. Accordingly, the Tribunal is satisfied that a ground for disciplinary action has been established, namely that the teacher, Mr Doherty, is unsuitable to teach.
What disciplinary action should be taken?
The parties made some joint submissions to the Tribunal about the appropriate disciplinary action.
The Tribunal considers that the behaviour of the teacher which establishes the ground for disciplinary action demonstrates that the teacher is not aware of appropriate discipline techniques and techniques for achieving student compliance; appropriate language and communication with students; appropriate physical touching of students; the power and trust granted to a teacher; and awareness of behaviour which may compromise the professional standing of a teacher and the teaching profession.
Accordingly, the Tribunal is satisfied that it is appropriate to make orders prohibiting Mr Doherty from reapplying for registration for a period of 12 months and for notations to be included in the register which ensure that before Mr Doherty reapplies for registration that he addresses the knowledge gaps.
Orders are made as follows:
That publication of the names of the students disclosed in evidence before the Tribunal be prohibited.
That under section 161(2)(c) of the Education (Queensland College of Teachers) Act 2005, that David Doherty is prohibited from reapplying for registration as a teacher for a period of 12 months from the date of this order;
That under section 161(2)(d) of the Education (Queensland College of Teachers) Act 2005, the following notation be included in the register of approved teachers:
Should, after the expiry of the prohibition period, David Doherty reapply for registration as a teacher, it is recommended that such application include evidence, which may be evidence from a psychologist, of 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) Awareness of appropriate discipline techniques with students;
d) Awareness of appropriate strategies for achieving student compliance;
e) An in depth examination of the extent and nature of the student, colleague, parent and community trust inherently invested in a teacher;
f) Awareness of power and trust granted to a teacher;
g) Awareness of behaviour which may compromise the professional standard of a teacher and the profession of teaching; and
h) Understanding and full adherence to the Queensland College of Teachers Code of Ethics.
In the event that David Doherty reapplies for registration as a teacher, it is likely that greater weight will be attached to independent and professional evidence addressing the matters at clause 2.
Should any application include a report by a psychologist or other health practitioner, it is recommended that such report include a reference to the report writer being provided with copies of:
i) The facts and circumstances; and
ii) Bundle of material P1 to P892
Except to the extent that section 168 of the Education (Queensland College of Teachers) Act 2005 applies, this notation does not bind the Queensland College of Teachers in making a decision under section 20 of the Education (Queensland College of Teachers) Act 2005.
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