Queensland College of Teachers v HL

[2013] QCAT 631

CITATION: Queensland College of Teachers v HL [2013] QCAT 631

PARTIES:	Queensland College of Teachers (Applicant)
v
HL (Respondent)

APPLICATION NUMBER: OCR175-13

MATTER TYPE: Occupational regulation matters

HEARING DATE: 16 October 2013

HEARD AT: Brisbane

DECISION OF: Presiding Member O’Callaghan
Member Lindgren
Member Kanowski

DELIVERED ON: 23 October 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The teacher’s registration is cancelled and she is prohibited from applying for registration or permission to teach until 20 February 2014.

2.    The following notation is to be entered into the register of approved teachers: Should, after 19 February 2014, the teacher reapply for registration as a teacher, her application is to include a detailed psychological report addressing her appreciation of the following:

a.    suitability to teach and work in a child related field;

b.    development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students;

c.    awareness of the power imbalance inherent in the teacher / student relationship;

d.    awareness of what constitutes appropriate and inappropriate communication with students;

e.    awareness of behaviour which may compromise the professional standing of a teacher and the profession of teaching;

f.     an in-depth examination of the extent and nature of the student, parental and community trust invested in a teacher;

g.    understanding of, and full adherence to, the Queensland College of Teachers’ Code of Ethics.

Any psychological report is to include reference to the report writer having been provided with copies of this decision and reasons, and the Queensland College of Teachers’ referral to QCAT.

CATCHWORDS:

DISCIPLINARY PROCEEDINGS – TEACHERS – whether not suitable to teach because of over-familiarity with students

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

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 (Qld).

REASONS FOR DECISION

1. This is a disciplinary proceeding against a female teacher, brought by the Queensland College of Teachers. The College says the teacher is not suitable to teach because of certain conduct she engaged in while employed by a girls’ high school. The conduct involved being over-familiar with several students.

2. Directions have previously been issued by the Tribunal prohibiting the publication of identifying particulars of the student, the school and the teacher.

3. QCAT is a disciplinary body under the Education (Queensland College of Teachers) Act 2005 (Qld).[1] The issues we must address are whether a ground exists for disciplinary action, and if so, what disciplinary action (if any) should be taken.

   [1]        Under Chapter 6, Part 2 of the Act.

Does a ground exist for disciplinary action?

1. The facts are undisputed. The conduct occurred between January 2011 and January 2013. The students were seven girls in years 11 or 12. The teacher was aged in her twenties at the time. She had been registered as a teacher since late 2008.

2. In emails with the students, the teacher referred to the recipients in terms such as ‘sister’, ‘gorgeous girl’, ‘my favourite’, ‘hunny’ and (in jest) ‘loser’. In some emails she used the word ‘shit’. She used expressions such as ‘love you’ and ‘xxox’. She did not censure students who, when emailing her, used expressions such as ‘hey sexy lady’ or ‘holy shit’. Occasionally she commented negatively in her emails on other students or staff. She allowed a student (student A) to access her school computer account.  

3. The teacher was in the practice of helping girls with their hair and make-up for school formals, in return for a fee. The College has not suggested that this was improper in itself, but it points to an email exchange indicating the favouring of one student (student A). The teacher told the student she would charge her $30 instead of the standard $60.

4. The teacher formed a close friendship with one of the students (student B).  They communicated regularly by phone, text message and email. The teacher often addressed the student by a nickname. They discussed the student’s personal problems and her relationships with boys. During a holiday period, the teacher stayed for a few days with student B and her family. She brought a gift of clothing for student B. There were a couple of instances of physical contact between the student B and the teacher during this visit, which were observed by student B’s parents. At one point on the first evening, the teacher’s legs were resting on student B’s legs, and student B was tickling one of the teacher’s legs. On the second night, the teacher and student B slept on mattresses in the lounge room for a movie night. By morning the mattresses had been pushed together, and student B was lying next to the teacher with an arm and leg over her. Both were asleep. The parents knew the student to be in the habit of being physically affectionate with people, but they did not feel comfortable to see it occurring with a teacher. They came to realise that the student viewed the teacher as her best friend.

5. The teacher says that it must have been student B who moved the mattresses together, while the teacher was asleep, and that the teacher was unaware that student B was sleeping next to her. We have no reason to doubt this.

6. Despite the physical contact with student B, and the expressions of mutual affection between the teacher and various students, it is not alleged that there was a sexual motivation on the part of the teacher or the students. Some of the conduct could be viewed as the teacher grooming students, and student B’s family, for the purpose of future sexual contact, but it is not alleged that this was a motivation. The words of affection were generally just a small part of a longer communication about another topic. Having regard to the content of the emails as a whole, we are satisfied that these expressions, and the physical contact with student B, were platonic in nature despite being quite intimate. The behaviour is similar to that often seen in young women who are close friends or best friends.

7. The proper role of a teacher, though, does not include being the close friend of students. The community does not expect teachers to be aloof, but over-familiarity is to be avoided. Over-familiarity carries a real risk of favouritism, or at least the perception of favouritism, by the teacher toward a particular student, or toward the students within an inner clique. Favouritism is at odds with values required by the Queensland College of Teachers’ Code of Ethics, namely integrity (by acting with impartiality) and justice (by being fair). Teachers are expected to model appropriate language and conduct. Criticising colleagues and swearing are clearly inappropriate, as is condoning similar conduct by students.

8. We acknowledge that the Code of Ethics requires teachers to ‘… demonstrate care by having empathy for and rapport with students and their families …’. We appreciate that it can be difficult to get the balance right in some situations. The present case, though, does not involve isolated acts of poor judgement. Rather, it involves a significant and repeated overstepping of the proper boundary. The teacher frequently communicated with the students in an over-familiar and inappropriate manner, and allowed the students to communicate similarly with her. She formed a close friendship with student B instead of maintaining a professional distance. Student B probably did need help in dealing with personal problems. The teacher should have referred her to the school counsellor or another professional instead of encouraging her to become emotionally dependent.

9. In failing to maintain professional boundaries, the teacher behaved in a way that did not satisfy a standard of behaviour generally expected of a teacher. She was therefore not suitable to teach[2] at the time of the conduct. It is undisputed, and we find, that the teacher remains not suitable to teach until such time as she demonstrates an appreciation of proper professional boundaries. Therefore, a ground exists for disciplinary action.[3]  

   [2]        Under Education (Queensland College of Teachers) Act 2005 (Qld) s 12(3)(a).

   [3] Ibid s 92(1)(h).

What disciplinary action (if any) should be taken?

1. The teacher was dismissed by the school because of the conduct we have discussed. She has not worked as a teacher since then, but she remains registered as a teacher.

2. The College and the teacher jointly submit that the appropriate action is for the teacher’s registration to be cancelled, and a prohibition upon reapplying for registration until 20 February 2014. (That date is a year after the teacher was dismissed by the school). Further, the College and the teacher agree that the teacher should, if reapplying for registration, be required to submit a psychological report addressing various relevant matters.[4]

   [4]The actions that may be taken are set out in the Education (Queensland College of Teachers) Act 2005 (Qld) s 160(2).

3. We have reservations about whether the teacher will have gained sufficient insight by February 2014. However, we are confident that the requirement for a psychological report will ensure that the teacher is not re-granted registration unless she has demonstrated real insight. On balance, we consider that the proposed action is appropriate.

4. Accordingly, we will adopt the suggested orders in substantially the form proposed. Amongst other things, this will ensure that a psychologist preparing a report will have regard to these reasons. We take this opportunity to note that it appears that the teacher’s husband responded to text messages from student B in mid-2013, indicating that the teacher missed student B, remained concerned about her, and so on. Copies of the messages were supplied by the College in connection with the question of non-publication, and we have not taken them into account in deciding what disciplinary action is appropriate. This is because we do not know whether the messages were sent with the teacher’s knowledge and consent, and the text messages were not discussed by the parties in their submissions. However, we believe the matter should be known to the psychologist, if one is engaged, so that the psychologist can canvass the matter with the teacher. If the messages were sent with the teacher’s knowledge and consent, it would suggest an ongoing lack of insight. (The College should, upon request, supply copies of the messages to the psychologist).

Conclusion

1. The teacher’s conduct in this case involved misguided efforts to build rapport with students and, in the case of student B, a misguided and inappropriate way of trying to help a needy student gain confidence. The teacher needs to develop different strategies to deal with and assist students, if she is to return to the profession of teaching. We consider that a period of cancellation, followed by a psychological assessment as a prerequisite to further teaching, will appropriately protect current and future students.