Queensland College of Teachers v Genge

[2011] QCAT 163

CITATION: Queensland College of Teachers v Genge [2011] QCAT 163

PARTIES:	Queensland College of Teachers (Applicant)
v
Jessica Ellen Genge (Respondent)

APPLICATION NUMBER:   OCR128-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Ms Clare Endicott, Senior Member
Professor A Ashman, Member
Ms Joanna Lindgren, Member

DELIVERED ON: 14 April 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    The Respondent’s registration is cancelled and she is prohibited from applying for registration or permission to teach from the date of the hearing until 31 December 2011.

2.    Publication of the name of the child complainant and the name and address of the school attended by the child complainant disclosed in evidence before the Tribunal is prohibited.

CATCHWORDS: 

TEACHER – fitness to teach – where teacher contacted student via Facebook – where teacher engaged in inappropriate communications with the student

NON-PUBLICATION – of complainant’s identifying information – in interests of justice

Education (Queensland College of Teachers) Act 2005, ss 3, 12(3), 12A, 92(1)(h), 160(2)(d)

REASONS FOR DECISION

1. The Queensland College of Teachers referred a disciplinary matter to the Tribunal, alleging that grounds exist to take disciplinary action against Miss Genge in that she is not suitable to teach.  In particular, it is alleged that she: engaged in inappropriate communications with a Year 12 male student via the Internet social networking site, Facebook between approximately March 2010 and May 2010; she attempted to engage in an inappropriate physical relationship with the Year 12 male student; and she breached policies of the employing authority and the Queensland College of Teachers aimed to protect the welfare and best interests of children and to uphold the standards of the teaching profession.

2. The Queensland College of Teachers suspended Miss Genge’s teacher registration on 2 June 2010.  The suspension of Miss Genge’s teacher registration was continued by the Tribunal on 16 June 2010. 

3. The Queensland College of Teachers also sought an order for the non-publication of the child complainant’s name, and the name and address of the child’s school.

4. The Queensland College of Teachers and Miss Genge have submitted an agreed statement of facts about the three allegations.

5. As to the first allegation, there is agreement by the Queensland College of Teachers and Miss Genge that she engaged in inappropriate communications with the complainant child via Facebook.  The Tribunal finds that the content of those communications was of a personal nature and on occasions was sexually suggestive in nature.  The Tribunal is satisfied that the communications were inappropriate to be sent by a teacher to a student.

6. As to the second allegation, that Miss Genge attempted to engage in an inappropriate physical relationship with the complainant child, there is agreement by the Queensland College of Teachers and Miss Genge that the Facebook communications included invitations to meet.  It was agreed, however, that no physical relationship occurred between Miss Genge and the complainant child.  The Tribunal finds that the evidence of the Facebook communications establishes that an inference could be drawn from those communications that Miss Genge intended to engage in a physical relationship with the complainant child.  The Tribunal is satisfied that the second allegation has been proven.  

7. As to the third allegation, that policies of the employing authority and the Queensland College of Teachers were breached, there is an admission by Miss Genge that the Queensland College of Teachers Code of Ethics and the Department of Education and Training Code of Conduct and Student Protection Policy constitute policies aimed to protect the welfare and the best interests of children and to uphold standards in the teaching profession.  Miss Genge admits that her conduct had breached those policies.  The Tribunal finds that the evidence establishes that Miss Genge in her communications with the complainant child on Facebook failed to comply with the policies of the employing authority and the Queensland College of Teachers aimed at protecting the welfare and best interests of children and aimed at upholding the standards of the teaching profession.  The Tribunal is satisfied that Miss Genge by her conduct breached the policies of the employing authority and the Queensland College of Teachers.

8. The Tribunal is satisfied that the findings made in paragraphs 5, 6 and 7 of these reasons warrant disciplinary action being taken against Miss Genge. The Tribunal is required by section 92(2) of the Education (Queensland College of Teachers) Act 2005 to consider whether, as a result of the findings made by the Tribunal, Miss Genge is suitable to teach. The phrase “suitable to teach” is not defined in the dictionary in schedule 3 of the Act but is given meaning in sections 11, 12 and 12A of the Act.

9. It is not alleged in this disciplinary matter that Miss Genge has any relevant criminal history so many of the provisions in sections 11 and 12A of the Act are not involved in the Tribunal’s consideration of whether Miss Genge is suitable to teach.  The Tribunal considers that the statutory factors to be taken into account are either that Miss Genge has behaved in a way that does not satisfy a standard of behaviour generally expected of a teacher[1] or that she has behaved in a disgraceful or improper way that shows the person unfit to be registered as a teacher[2]. 

   [1] Section 12(3)(a) of the Education (Queensland College of Teachers) Act 2005.

   [2] Section 12(3)(b) of the Education (Queensland College of Teachers) Act 2005.

[10]  Miss Genge concedes that her conduct did not satisfy the standard of behaviour generally expected of a teacher.  The Tribunal considers that that concession is appropriately made.  Miss Genge’s conduct in question in this disciplinary matter clearly departed from behaviour expected of teachers by the teaching profession, as evidenced by the Queensland College of Teachers Code of Ethics, and by the community.  The Tribunal finds that she failed to conduct herself in a manner designed to protect the welfare and the best interests of children and to uphold standards in the teaching profession.  The Tribunal is satisfied that because her conduct failed to reach the standard of behaviour generally expected of a teacher between March and May 2010, Miss Genge was not suitable to teach.      

[11] As a ground for disciplinary action has been established, the provisions of section 160 of the Education (Queensland College of Teachers) Act 2005 permit the Tribunal to impose a range of sanctions against Miss Genge. The Queensland College of Teachers seeks an order from the Tribunal cancelling Miss Genge’s registration and prohibiting her from re-applying for registration for four years. Miss Genge concedes that in view of her conduct it is open to the Tribunal to cancel her registration and she submits that the appropriate range of the period of cancellation is six months to one year.

[12]  It is acknowledged by the Tribunal that any sanction to be imposed by the Tribunal is not imposed as a punishment for the conduct in question.  A sanction in a disciplinary matter is imposed in the interests of the protection of children and of the community.  It is essential that persons registered as teachers do not pose a risk of harm to children.  The conduct of Miss Genge during March to May 2010 gave rise to a risk of harm to the complainant child.  She has been found as not suitable to teach because of her conduct during that time.  The Tribunal is satisfied that cancellation of her teacher registration is warranted in the interests of the protection of children and the community.      

[13]  The Tribunal, therefore, turned its attention to the period of cancellation warranted under the circumstances. 

[14]   The objects of the Education (Queensland College of Teachers) Act 2005 are set out in section 3. These include upholding the standards of the teaching profession, maintaining confidence in the teaching profession, and protecting the public though an education provided by professional and competent teachers. The Queensland College of Teachers has submitted that general deterrence to both young and established teachers must be an important consideration in this case. The Tribunal acknowledges the cogency of that argument that some general deterrence to teachers must be an important impact of the sanctions it imposes but the Tribunal is also aware that the particular circumstances of each case must be carefully taken into account in the interests of justice. The Tribunal considers the correct approach is to achieve a balance between general and specific deterrence in this case.

[15]  Miss Genge has provided comprehensive submissions to the Tribunal on the sanction to be imposed.  She has provided a report from Jenifer Turner, a psychologist, who had conducted fourteen counselling sessions with Miss Genge between June 2010 and November 2010.  Ms Turner expressed an opinion that, following the successful conclusion of her treatment, Miss Genge would not allow any situation similar to the matters involved in these disciplinary proceedings to develop in the future.  Ms Turner drew attention to Miss Genge’s personal circumstances around the time of her inappropriate interactions with the complainant child.  These personal circumstances were characterised by considerable disruptions and dysfunction within her immediate family, resulting stress and depression, and anxieties associated with unacceptable student behaviour within her school that amounted to sexual harassment.

[16]  Miss Turner’s report is especially informative as it draws attention to Miss Genge’s perception of a lack of support from her school’s administration after sexual harassment by male students and to her view that she would have to handle such behaviour alone.  There were also issues relating to the blurring of teacher/student boundaries complicated by her brother and his friends attending the school at which Miss Genge taught.

[17]  Miss Turner writes that since Miss Genge’s suspension, she has gained considerable insight about the distinction between personal and professional relationships and has learned strategies for maintaining professional boundaries and managing associated risks.  The opinions expressed by Ms Turner were not challenged by evidence provided by the Queensland College of Teachers although the submissions made by the Queensland College of Teachers did strenuously contest some of the factual bases for those opinions.  The Tribunal considered that the opinions expressed by Ms Turner were reasonable and based on the evidence in the case.  Her opinions, especially as to the gaining of insight and maturity by Miss Genge, are accepted by the Tribunal and have been relied on when formulating the sanction to be imposed in this case.    

[18]  Personal references were also provided by teaching colleagues who described Miss Genge as a talented, hard-working, and committed teacher.  References from sporting associates refer to her as a role model for young women of her age.

[19]  The Tribunal has taken into consideration Miss Genge’s relatively short teaching experience, the narrow age difference between her and senior secondary students, and the support that she perceived coming from the complainant child during their interactions.  These factors assist the Tribunal to understand the reasons for her conduct and the risks of re-occurrence of such conduct without of course providing an excuse for that conduct. 

[20]  Miss Genge has admitted that her conduct during March to May 2010 failed to meet the standard of conduct expected of a teacher, she has since then successfully undertaken a lengthy period of counselling, and she has gained significant learning and insight from that therapy.  The Tribunal is satisfied that the evidence establishes that the risk of harm to children and to the community is now low due to the insight into the harmful aspects of her conduct gained by Miss Genge.  The Tribunal is satisfied that both general deterrence and specific deterrence do not now warrant a lengthy period of cancellation of Miss Genge’s registration.  The Tribunal is persuaded by the evaluations given by Miss Genge’s teaching associates that she has considerable talents to offer as a teacher and is concerned that a lengthy period of cancellation would impair her teaching skills and would be overly harsh.

[21]  Miss Genge has been away from her teaching role for over ten months so far.  To prevent her from re-applying for registration for a further four years as sought by the Queensland College of Teachers would be far in excess of what is required to protect the interests of children and the community and would be too harsh a deterrence.  The period of cancellation must be appropriate to acknowledge the reprobation of the community and the teaching profession to Miss Genge’s conduct as falling below the standards of a teacher but must also recognise the likelihood that due to her subsequent efforts and conduct Miss Genge will be suitable to teach in the foreseeable future and that she will not pose a risk of harm to children.    

[22]  The Tribunal has decided that Miss Genge’s teacher registration must be cancelled and she is prohibited from applying for registration or permission to teach until 31 December 2011.  This period achieves an appropriate balance of the respective factors to be taken into account when imposing a sanction, particularly when it is considered that the minimum time away from teaching will be over 18 months for Miss Genge.  

[23]  As to the non-publication order sought by the Queensland College of Teachers, the Tribunal acknowledges that the complainant child could be emotionally affected and embarrassed if his name and the name and address of the school attended by the complainant child are published.  The evidence provided to the Tribunal revealed that the complainant child had experienced emotional problems around the time of the conduct in 2010.  It is not appropriate to facilitate disclosure of information that would tend to aggravate his problems so long after the events that transpired in 2010.  It is in the interests of justice that children participate when appropriate in disciplinary action against their teachers so that the objects of the Education (Queensland College of Teachers) Act 2005 are achieved. It is inappropriate to penalise children for participating if publication of identifying information is likely to impact adversely on their emotional functioning. The Tribunal has power under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 to prohibit publication of information that may enable a person affected by the proceeding to be identified. The Tribunal considers that it is necessary to make an order under that section in the interests of justice in this case. The Tribunal, therefore, prohibits the publication of the complainant child’s name and the name and address of the school attended by the complainant child.