Queensland College of Teachers v GHI
[2012] QCAT 182
•26 April 2012
| CITATION: | Queensland College of Teachers v GHI [2012] QCAT 182 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| GHI (Respondent) |
| APPLICATION NUMBER: | OCR136-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 10 February 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member K O’Callaghan, Senior Member S MacDonald, Member |
| DELIVERED ON: | 26 April 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The disciplinary action is dismissed. 2. Publication of the name of the teacher is prohibited. |
| CATCHWORDS: | OCCUPATIONAL DISCIPLINE – whether a person is unsuitable to teach – where conduct relied on took place more than six years earlier – where there was no evidence of continuity of unsatisfactory behaviour – where no findings made of untrustworthiness of character Education (Queensland College of Teachers) Act 2005, ss 12(1)(b), 12(3)(a), 92(1)(h) Barristers Board v Darveniza (2000) QCA 253 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
GHI was at all times relevant to this disciplinary matter a registered teacher. During 2005 he was teaching at a secondary school. He was 28 years of age in November 2005.
After the end of the year 12 graduation day on 18 November 2005, GHI permitted some of his former students to attend at his residence. The students had been drinking alcohol before they arrived at GHI’s residence. GHI consumed alcohol at his residence with the students and he became significantly intoxicated to the extent that he was unable to stand properly.
GHI did not take steps to prevent the students remaining at his residence or to prevent them drinking alcohol at his residence.
On 30 November 2005 GHI was interviewed by the principal of the secondary school about an allegation that a year 12 graduation party had taken place at his residence. GHI told the principal that he had been intoxicated and he had been unaware that there had been a party at his residence until he woke the following morning. GHI later conceded that the version he had told to the principal was untrue.
GHI was disciplined by his employer over the incident and was cautioned about any ongoing failure to maintain professional relationships with students. GHI was directed to attend Code of Conduct and Student Protection training.
The Queensland College of Teachers received disciplinary information about GHI from his employer in April 2009. The College, after forming a belief that grounds exist for disciplinary action to be taken against GHI, referred the matter to QCAT in July 2011.
The College and GHI, after filing submissions in which all relevant facts were agreed and in which all relevant issues were identified and agreed, sought an order from QCAT that the disciplinary matter be dealt with by way of an on the papers hearing. QCAT made an order that the disciplinary matter would be heard on the papers on 10 February 2012.
The ground for disciplinary action relied on by the College is found in section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005: that GHI is not suitable to teach.
The relevant time for determination whether a person is not suitable to teach is at the date of hearing. Consequently, while the College must inform QCAT about the facts and circumstances forming the basis of the grounds for disciplinary action, those facts alone cannot be the sole determinates for QCAT to make a finding that this particular ground for disciplinary action has been established. There has to be some continuing factual element in order for a person to be found to be unsuitable to teach more than six years after the facts and circumstances that underpin the disciplinary action had taken place.
That continuing element must be relevant to a person’s suitability to teach. GHI has continued to be registered by the College as a teacher after November 2005 and he has continued to teach. The College did not allege that any conduct by GHI since November 2005 should be taken into account as having any relevance to his suitability to teach as of the date of the hearing in 2012.
In many cases involving professional discipline, the continuing element relevant to the issue of suitability to practise in a profession is provided by a finding that a person is not of good or trustworthy character or has not been honest about past behaviour when full candour about such an issue was required.[1]
[1]Nursing & Midwifery Board of Australia v FH [2010] QCAT 675, Re Davis [1947] HCA 53, Burgess v Board of Teacher Registration Queensland [2003] QDC 159.
Thomas JA had aptly clarified this issue as follows in Barristers Board v Darveniza:
“When it makes such orders the Court does so not by way of punishment but in order to protect the public and maintain public confidence in the administration of justice. So far as the criminal law is concerned the respondent has already paid his debt to society by being found guilty of the offences in question and having been fined….. Further disadvantages will mean that he is dealt with more harshly for his transgressions than other members of the public. That however is an unavoidable consequence of maintenance of the necessary high standards in the profession of barrister…. The ultimate test is whether the respondent is a fit and proper person to remain a Barrister. Generally speaking the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practices.”[2]
[2] (2000) QCA 253 at paragraphs 32 and 33.
Judge Boyce in Burgess v Board of Teacher Registration Queensland described the issue as follows:
“Any behaviour found to be inappropriate for a teacher is relevant to the ultimate question of fatness to be a teacher, even though the events may have happened many years earlier. The weight to be attached to that behaviour was a matter for the Board to determine…. There was continuity in inappropriate behaviour from 1977 up to the hearing before the Board… The continuity of the inappropriate behaviour resulted in a body of evidence adverse to Mr Burgess and which was of considerable weight on the question of his fitness to be a teacher.”[3]
[3] [2003] QDC 159 at paragraph 76.
Judge Boyce further relevantly stated in that case:
“Concern for an individual who is overtaken by the consequences of past wrongdoing is a very human feeling, but that is no reason whatever for impairing in the interests of Mr Burgess the standards of a profession to which the community entrusts the immensely important task of educating young children and adolescents.”[4]
[4] Ibid at paragraph 76.
In the case of GHI QCAT is asked to rely on admitted conduct which had occurred over six years earlier as establishing a finding that GHI is currently unsuitable to teach. The College submitted that establishing that a teacher is unsuitable to teach requires consideration of a number of matters under section 12 of the Education (Queensland College of Teachers) Act 2005. One such factor is whether the teacher is suitable to work in a child-related field.[5]
[5] Section 12(1)(b) of the Education (Queensland College of Teachers) Act 2005.
The College submitted that QCAT would find that a person is not suitable to teach in a child-related field if that person poses an unacceptable risk of harm to children. It is clear that GHI exhibited a lack of judgement in November 2005 in permitting former students (albeit only very recent former students) to drink alcohol at his residence and then misrepresenting the incident to his principal. He underwent training on the employer’s Code of Conduct and on Student Protection issues which would be designed to provide him with the necessary skills to fill in any gaps in his professional judgement abilities.
QCAT has not been persuaded that GHI’s continuing to teach poses an unacceptable risk of harm to children. There is no evidence that he has been anything other than a model teacher since November 2005. The College conceded that the evidence did not support an adverse finding under section 12(1)(b).
However, the College submitted that the conduct, which can be described as a failure to maintain a professional distance with former students and as a failure of candour with his principal, fell short of a standard of behaviour generally expected of a teacher.
QCAT has no difficulty accepting that the conduct of GHI in November 2005 did fall short of a standard of behaviour that the community would expect from a teacher. GHI has conceded that is an appropriate finding.
The College submitted that the evidence establishes an unsuitability to teach as described in section 12(3)(a): behaving in a way that does not satisfy a standard of behaviour generally expected of a teacher. QCAT cannot reach that conclusion when the focus must be on the current suitability in 2012 of GHI to teach. There is no evidence that he is behaving currently at a standard generally short of the standard expected from a teacher.
As stated by Judge Boyce in the Burgess case, the weight to be attached to the former behaviour of the teacher in the context of determining current unsuitability to teach is a matter for QCAT to decide. Unlike the matters established in the Burgess case, there is no evidence of continuity in inappropriate behaviour from GHI. The weight that should be attributed to the 2005 conduct is relatively minor.
The 2005 conduct does not in the view of the tribunal compel findings of current untrustworthiness of character. Rather the behaviour of GHI in teaching children and adolescents since November 2005 without any apparent concerns about his professionalism since that earlier conduct gives rise to a satisfaction that he is indeed a person who is trustworthy in character. He underwent appropriate rectification training and he has apparently taken the lessons he learned into account. A person who inherently lacks judgment that is intractable to rectification would be likely to have displayed other examples of unsatisfactory conduct before now.
The evidence provided by the College does not satisfy the tribunal that GHI is not suitable to teach. No ground for disciplinary action against GHI has been established. The referred disciplinary action is dismissed.
An order was made on 12 August 2011 prohibiting publication of the names and addresses of the children involved in this matter together with the identity of their school. That order stands and is clearly appropriate.
However, in view of the decision of the tribunal to dismiss the disciplinary action, the tribunal considers that it is in the interests of justice that publication of the name of the teacher who was the subject of the unsuccessful disciplinary action should also be prohibited. He should not be put at a public disadvantage over a lack of judgement in his past that does not affect his present suitability to teach. A non publication order over the identity of the teacher has accordingly been made.
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