Queensland College of Teachers v Grasso

[2011] QCAT 292

CITATION: Queensland College of Teachers v Grasso [2011] QCAT 292

PARTIES:	Queensland College of Teachers
v
Ms Kristine Maree Grasso

APPLICATION NUMBER:   OCR241-10  

MATTER TYPE: Occupational regulation matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Mr Michael McCarthy, Presiding Member
Mr John Gallagher, Member
Mr Stuart MacDonald, Member

DELIVERED ON: 22 June 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

1.     The Respondent’s teacher registration is cancelled, and she is prohibited from reapplying for registration or permission to teach for a period of 3 years from the date of the order.

2.     Upon the Respondent re-applying for registration as a teacher, it is recommended that the Queensland College of Teachers request that the Respondent provide a report from a registered psychologist addressing the Respondent’s understanding of the following matters:

(1)  the legal obligations of teachers;

(2)  risk assessment and early issue identification of potentially problematic situations as well as initiating realistic solutions for avoiding risk of harm to students;

(3)  the extent and nature of the student and community trust inherently invested in a teacher;

(4)  personal and social behaviour that would compromise the professional standing of a teacher, and the teaching profession;

(5)  An awareness of the trust and power granted to a teacher.

CATCHWORDS:

DISCIPLINARY PROCEEDINGS – TEACHERS – Where teacher engages in inappropriate communications and conduct with student – where student vulnerable – whether teacher not suitable to teach – whether standard of behaviour expected of a teacher not satisfied

APPROPRIATE SANCTION – Where vulnerable student – significance of inappropriate conduct of teacher

Education (Queensland College of Teachers) Act 2005, ss 12(1)(b), 12(3), 92(1)(h), 160(2), 158

QCT v Ashton [2010] QCAT 80
QCT v Field OCR [2010] QCAT 32
Briginshaw v Briginshaw (1938) 60 CLR 336
Clyne v New South Wales Bar Association (1960)104 CLR 186

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

Background

1. Kristine Maree Grasso (‘Ms Grasso’) first received registration as a teacher on 22 January 2009.

1. Following an investigation, the Queensland College of Teachers (‘QCT’) suspended Ms Grasso’s registration on 24 September 2010 and referred a disciplinary matter to the Queensland Civil and Administrative Tribunal (‘the Tribunal’) on the basis that grounds may exist to take disciplinary action against Ms Grasso, in particular, that she may not be suitable to teach.

1. The specific allegations put to the Tribunal by the QCT were as follows :

(1)that in 2009 and 2010 Ms Grasso engaged in inappropriate communications with a student in the form of phone communications, text messaging and communications through a social networking site;

(2) that in 2009 and 2010, Ms Grasso engaged in inappropriate conduct with a student, in particular by engaging in inappropriate discussions, spending a significant amount of time during and outside of school hours with the student, conveying the student to and from sporting activities, sleeping over at the student’s house and sharing a bed with the student, inviting the student to accompany her on a visit to another city, allowing the student to spend a night in the same hotel room while on a sporting trip, expressing her love for the student and in formulating plans to continue the relationship with the student after school had finished;

(3) that Ms Grasso engaged in an inappropriate sexual relationship with the student;

(4)that in 2010, Ms Grasso failed to report to the authorities, her knowledge or a reasonable suspicion that the student was engaged in or at risk of engaging in self harming behaviour; and

(5) that Ms Grasso breached policies of the QCT aimed at protecting the welfare and best interests of children and upholding the standards of the teaching profession.

The Evidence presented to the Tribunal

1. The Tribunal was provided with the QCT’s brief of evidence which included transcripts of interviews, an investigation report and various attachments to that report.

1. The interviews undertaken included interviews with the respondent Ms Grasso, with students and teachers at the school and with the parents of the student who was the subject of the alleged conduct.

1. The QCT and Ms Grasso have submitted to the Tribunal an agreed statement of facts about the allegations against Ms Grasso.

Findings of Fact

1. In respect of the first allegation, there was agreement between the QCT and Ms Grasso that during 2010, the parties did communicate through the social networking site Facebook, as well as by notes and text messages, including multiple text messages per day, that such conversations included comments about personal problems and/or disputes, and that such text message conversations did extend to include matters about the personal relationship between the parties.  The Tribunal is satisfied that the evidence establishes that these communications did occur and finds that these were inappropriate communications for a teacher to forward to a student.

1. In respect of the second allegation, there was agreement between the parties that discussions about sexuality did take place during a school netball trip away in 2009, that the parties did spend a lot of time alone together at the student’s home, that Ms Grasso did during 2010 commence staying over at the student’s home and on some occasions did share a bed with the student, that Ms Grasso did invite the student to accompany her to another city, that Ms Grasso did often drive the student to and from sporting activities in her own vehicle, including trips to another city, that on a school netball trip in 2010, Ms Grasso and the student shared a room for a number of nights, that Ms Grasso did make an expression of love for the student and did communicate a desire to continue the friendship after the student had finished school.  The Tribunal is satisfied that the evidence establishes that each of these alleged behaviours did occur and finds that the second allegation is proven to the relevant standard.

1. As to the third allegation, there was agreement between the parties that sexually intimate activity did take place during the relevant period.  The Tribunal is satisfied that the evidence establishes that a sexual relationship over a period of time was entered into by Ms Grasso and the student and finds that the third allegation is proven.

1. As to the fourth allegation, the parties agreed that although Ms Grasso did question the student about certain behaviour that was in fact self-harming behaviour, and did recommend that the student consult with a counsellor, Ms Grasso did not notify any person until one to two months after the behaviour had occurred.  The Tribunal is satisfied that the evidence establishes that Ms Grasso failed to promptly report the student's behaviour to an appropriate person or authority.

1. In respect of the fifth allegation, the Tribunal is satisfied that, in view of the Tribunal’s findings in relation to the other allegations, Ms Grasso has on the evidence before the Tribunal breached the policies of the employing authority and the QCT in so far as they deal with the protection of the welfare and best interests of children, and maintaining appropriate standards for the teaching profession.

1. The Tribunal, having satisfied itself that the allegations have been proven to the relevant standard, then turned its mind to whether or not such findings warrant disciplinary action being taken against Ms Grasso.

Law to be applied

1. Grounds for disciplinary action are outlined in section 92 of the Education (Queensland College of Teachers) Act 2005. Section 92(1)(h) contains the ground that “the teacher is not suitable to teach”.

1. The concept of “suitability to teach” is specifically dealt with in section 12 of the Education (Queensland College of Teachers) Act 2005. It requires the consideration of a number of factors, including whether the person is suitable to work in a child related field (section 12(1)(b)). Further, section 12(3) of the Education (Queensland College of Teachers) Act 2005 provides that a person is not suitable to teach if that 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.

1. The Tribunal considers that the relevant standard should be that of community expectation.  This view is supported by reference to the main objects of the Education (Queensland College of Teachers) Act 2005 which refer to maintaining public confidence in and upholding the standards of the teaching profession as well as protection of the public through ensuring education is delivered in a professional and competent way.

1. The relevant standard for determining whether grounds for disciplinary action have been established is the reasonable satisfaction of the decision-maker, but having regard to the seriousness of the allegations, in accordance with the well established standard described in Briginshaw[1].

   [1]        Briginshaw v Briginshaw (1938) 60 CLR 336.

Application of the Law

1. The Tribunal considers that the community would undoubtedly have expected more of a teacher in Ms Grasso’s position, particularly when dealing with a vulnerable student.  The Tribunal is satisfied that Ms Grasso has acted in a way that does not satisfy the standard of behaviour generally expected of a teacher.

1. The Tribunal finds that on the evidence before it, a ground for disciplinary action against Ms Grasso has been established. Specifically, under s 92(1)(h) of the Education (Queensland College of Teachers) Act 2005, the Tribunal finds that Ms Grasso is not suitable to teach, within the meaning of that phrase in s 12(3) in that her behaviour does not satisfy the standard which the community would generally expect of a teacher, and she has failed to conduct herself in a manner that would protect the welfare and best interests of students.

1. Having established that a ground for disciplinary action exists, the Tribunal then turned its attention, as it is required to do under s 160(2) of the Education (Queensland College of Teachers) Act 2005, to determining the appropriate sanction.

The Appropriate Sanction

1. Section 160 of the Education (Queensland College of Teachers) Act 2005 provides a range of options for disciplinary action which are available to the Tribunal if the Tribunal decides that grounds for disciplinary action have been established.

1. It is clear that this jurisdiction is protective in nature, not punitive.  The purpose of disciplinary proceedings[2], as has been well documented, is really two fold, in that they are aimed at providing protection for both the public and the profession in question.  In the case of teachers, this clearly translates to a requirement that such proceedings should:

1) provide the public with the protection it deserves when children are entrusted into the care and control of teachers, and

2) provide the teaching profession with the confidence that certain standards will be required and enforced.

[2]        Clyne v New South Wales Bar Association (1960)104 CLR 186 at 201-202.

1. In view of the nature and seriousness of the transgressions of Ms Grasso as found by the Tribunal in this matter, the Tribunal is satisfied that a significant sanction is warranted.  The Tribunal is satisfied that cancellation of Ms Grasso's teacher registration is appropriate in view of the findings of the Tribunal in this matter.

1. In terms of an appropriate period for cancellation of Ms Grasso’s teacher registration, the Tribunal considered both aggravating and mitigating circumstances.  In the Tribunal's view, the fact that Ms Grasso engaged in sexual conduct with the student over a period of time and that the student in question was vulnerable raised the seriousness of her conduct.

1. The Tribunal did however also take into account mitigating circumstances which included the relative youth and inexperience of Ms Grasso, her willingness to co-operate and volunteer information which assisted the QCT's investigation, the remorse clearly shown by Ms Grasso for her transgressions and her voluntary participation in therapy, as well as the period of approximately 8 months during which her teacher registration has already been suspended.  The Tribunal also had the benefit of a report prepared by a psychologist, submitted on Ms Grasso's behalf which supported the view that Ms Grasso has genuinely shown remorse for her actions and sought to improve her understanding of what is required of a teacher.

1. The Tribunal is also aware of comparable disciplinary decisions including QCT v Ashton[3] where the teacher’s registration was cancelled and a prohibition from re-applying for a period of 2 years put in place.  The teacher had in that case through repeated contact and gifts formed an inappropriate physical relationship which continued over a period of time.  The student in that case was vulnerable and had experienced a troubled background.

   [3]        QCT v Ashton [2010] QCAT 80.

1. In QCT v Field[4] a 5 year prohibition on reapplying for registration was imposed on the teacher in addition to cancellation of registration.  However, that matter involved a continuing course of conduct which included a series of communications with a student with explicit sexual references, and a lack of insight evidenced by the teacher continuing the conduct even after receiving a warning.  The Tribunal considered a 5 year period of prohibition appropriate in that matter because of the serious nature of the interactions with the student as well as the demonstrated lack of remorse and insight.

   [4]        QCT v Field OCR [2010] QCAT 32.

1. The Tribunal considers that the circumstances of this matter make it more serious than the matter of Ashton, but less serious than the matter of Field.  The Tribunal has determined that, in addition to cancellation of Ms Grasso’s registration, a period of prohibition from reapplying for registration of 3 years should be applied in this case.

1. However, in view of the nature of the serious breach of trust in this matter, the Tribunal considers it is also appropriate that a notation be entered in the register, so that if Ms Grasso seeks to re-apply for registration as a teacher in the future, it is recommended that the QCT request that a report be obtained from a registered psychologist indicating that Ms Grasso has gained the necessary insight or knowledge into what is required of a teacher.