Queensland College of Teachers v Mears
[2012] QCAT 327
•23 July 2012
| CITATION: | Queensland College of Teachers v Mears [2012] QCAT 327 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| David Geoffrey Mears (Respondent) |
| APPLICATION NUMBER: | OCR051-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 17 July 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul Kanowski, Presiding Member Ron Joachim, Member Joanna Lindgren, Member |
| DELIVERED ON: | 23 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Mears’ teacher’s registration is suspended for 15 months commencing on 17 July 2012. 2. Before Mr Mears’ teacher’s registration can be reinstated, he must provide the Queensland College of Teachers with a satisfactory independent psychological report addressing the following issues: 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) an in-depth examination of the extent and nature of the student, colleague, parent and community trust inherently invested in a teacher; d) awareness of the trust and power granted to a teacher; e) awareness of the behaviour which may compromise the professional standing of a teacher and the profession of teaching; f) understanding and full adherence to the Queensland College of Teachers Code of Ethics; and g) an assessment of the likelihood of Mr Mears engaging in behaviour in the future of the kind that has led to the present disciplinary action. 3. The psychologist’s report is to include: a) an indication of whether the psychologist is satisfied that Mr Mears has adequately understood and addressed the above points; and b) reference to the psychologist having been provided with copies of the Tribunal’s orders and reasons for decision, and the Queensland College of Teachers’ amended referral. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – TEACHER – where teacher swore at and pushed students – where teacher received multiple warnings – where teacher undergoing psychological treatment – whether teacher is suitable to teach Education (Queensland College of Teachers) Act 2005, ss 3(1), 12, 92(1)(h), 160(2) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Introduction
This case is about whether disciplinary action should be taken against Mr Mears, a high school teacher. Mr Mears has sworn at students on a number of occasions. He has also made physical contact, such as pushing students, ‘without a valid educational purpose’.
Mr Mears has been registered as a teacher in Queensland since 2000. He worked for the Department of Education and Training from 2000 until his employment was terminated on 17 October 2011. He taught at one state high school initially, and then at another for ten years.
The applicable law
When the College of Teachers reasonably believes that a ground for disciplinary action against a teacher exists, it must refer the matter to a disciplinary body: section 97(1) of the Education (Queensland College of Teachers) Act 2005. For more serious matters, the disciplinary body is the Tribunal: section 97(2). If the Tribunal finds that a ground for disciplinary action has been established, it may make orders such as suspending the teacher’s registration and imposing conditions on the registration: section 160(2).
A ground for disciplinary action is that the teacher is not suitable to teach: section 92(1)(h). In considering a person’s suitability to teach, the Tribunal must have regard to certain matters under sections 11 and 12. These include any criminal history of the person, and, if the teacher has been dismissed from employment, the reasons for that dismissal. It is necessary to consider whether the person is suitable to work in a child-related field. Section 12(3) says that ‘a person is not suitable to teach if the person behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher’.
It is also important to keep in mind the objects of the Act, stated in section 3(1):
a)to uphold the standards of the teaching profession;
b)to maintain public confidence in the teaching profession; and
c)to protect the public by ensuring that education in schools is provided in a professional and competent way by approved teachers.
Evidence and findings
The relevant material before the Tribunal consists of:
a)the College’s application to the Tribunal lodged on 24 February 2012;
b)the affidavit of Mr Peter O’Sullivan, Principal Legal Officer with the College, dated 23 February 2012, with exhibits including the original referral to the Tribunal, statements by students and staff, and transcripts of interviews;
c)amended referral by the College dated 23 May 2012;
d)letters from Mr Mears to the Tribunal, responding to the referral and amended referral, dated 26 April 2012 and 24 May 2012 respectively;
e)reports by Ms Laura Gardner, clinical psychologist, dated 1 September 2011, 8 June 2012 and 28 June 2012;
f)the College’s submissions dated 5 June 2012, and letter dated 29 June 2012; and
g)submissions by Macrossans Lawyers on behalf of Mr Mears dated 20 June 2012.
There have been a number of substantiated complaints against Mr Mears over the years:
a) In July 2003 Mr Mears slapped a year 8 student on the head. Mr Mears was remorseful. The department reminded him of his obligations under the Code of Conduct and arranged for the behaviour management advisory teacher to help Mr Mears ‘develop more appropriate behaviour management strategies’.
b) In November 2003 Mr Mears swore at and hit a student. Mr Mears acknowledged that this was unacceptable. The department reminded him again of his obligations under the Code of Conduct. He said he had worked with behaviour management counsellors and a psychologist to address his behaviour.
c) In May 2005 Mr Mears swore at a student. Formal disciplinary action was not taken, as Mr Mears attended a behaviour management course run by the department in August 2005. He also attended private counselling ‘with respect to dealing with similar situations in the classroom’. The department warned Mr Mears that any further inappropriate behaviour could result in disciplinary action.
d) In November 2005 Mr Mears threw a ball at a visiting year 7 student and used inappropriate language. The department reminded Mr Mears of his obligations under the Code of Conduct and the Student Protection Policy, and arranged for him to attend counselling with the principal.
e) In May 2006 Mr Mears ‘repeatedly swore at and used intimidating and abusive language towards three students’. He was formally cautioned and he was counselled by the principal.
f) On 10 May 2010 Mr Mears swore in a year 9 class. He said to a female student Get your ass over here. When marking the role, he shouted to a male student Sorry but there was a fucking truck coming by. He repeatedly used the words ‘dickhead’ and ‘fuck’ when addressing students in the class. Departmental disciplinary action followed, with Mr Mears having his remuneration reduced for six months. He was also directed to attend Code of Conduct and Student Protection Policy training.
g) On a date between 17 and 21 February 2011 Mr Mears called a male year 10 student a ‘fucking idiot’. He told the student to ‘fucking listen’ and pushed him into a whiteboard.
h) On or about 21 February 2011 Mr Mears called a male year 8 student a ‘little dickhead’. He grabbed the student by the throat and pushed him into a pole. He told the student to ‘fuck off’ or ‘piss off’.
i) On or about 22 February 2011 Mr Mears told a year 10 class that If anyone fucks up their job, they will get a kick up the arse. He said to one male student You need a kick up the arse, You’re a dickhead, and You fucked up didn’t you? Mr Mears elbowed and poked this student.
j) On or about 22 February 2011 Mr Mears threw a duster in the direction of a male year 10 student during a class, almost hitting him. Mr Mears also used the word ‘fucking’ in addressing this student.
k) On or about 31 March 2011 Mr Mears pushed a female year 11 student on the shoulder while yelling loudly at her.
Mr Mears does not now dispute any of the allegations, although earlier in the course of the proceeding he did dispute some of the 2011 allegations, especially those concerning physical contact. In relation to the incident mentioned in paragraph 7(h), Mr Mears says he agrees with the student’s description of the physical contact namely:
… he grabbed me like near my collarbone and had his thumb and index finger around my throat. … there’s a pole … and he pushed me into that and held me there and then just told me to piss off to my class.
The Tribunal finds that the various incidents outlined above have occurred. There was also a further allegation, that Mr Mears pushed a female student on 10 May 2010. When the department investigated that matter, it was not satisfied that Mr Mears’ conduct warranted disciplinary action. The department did, though, caution Mr Mears. It also encouraged him to discuss with his supervisor his approach to the management of student behaviour.
There is no suggestion that Mr Mears has been charged by the police with assault in connection with any of the incidents. Nor is it suggested that Mr Mears has ever been charged with any other offences.
When the department terminated Mr Mears’ employment, it sent him a letter dated 17 October 2011. Amongst other things, the department observed that a teacher has a special position of trust and confidence within the department and the community at large. The department considered that Mr Mears swearing at students, and using unnecessary physical contact as a behaviour management technique, called into question the ability of the department to maintain that trust and confidence. The department commented:
Your conduct clearly does not demonstrate your awareness, or modelling, of appropriate standards … Your inability to modify your behaviour in light of previous disciplinary penalties … renders your continued engagement with the Department untenable.
When interviewed by the department, Mr Mears has said that the incidents have occurred at times of stress, either in his personal life or when students have defied his authority. This is generally consistent with the material and the Tribunal accepts it. The Tribunal also accepts the comments of Mr Mears’ immediate supervisor Mr Neil Wakefield to the effect that Mr Mears is generally a competent and enthusiastic teacher.
In 2010 Mr Mears’ general practitioner referred him to Ms Gardner for psychological treatment. Ms Gardner has provided three reports. As at June 2012, she noted that Mr Mears had attended 18 sessions since October 2010. Three of these sessions took place prior to the February 2011 incidents. Mr Mears next attended sessions on 8 and 22 March 2011, prior to the final incident.
When Mr Mears presented initially, Ms Gardner observed symptoms of depression and anxiety: Mr Mears was being investigated by the department and was at risk of dismissal. He reported that over the years he had experienced sleepless nights and stress in dealing with difficult students. He also reported becoming angry at home with his own children. In relation to the school incidents, Ms Gardner comments:
He described incidents that occurred in the classroom when he had sworn, this was typically triggered from frustration such as having to go over previously spoken tasks repetitively with students and poor behaviour from students. David expressed embarrassment regarding the outbursts and considered his reactions to occur very quickly.
Ms Gardner notes that Mr Mears has had a low tolerance for frustration, and difficulties with mood, impulse control and managing stress. Ms Gardner’s interventions have included psychoeducation, helping Mr Mears develop stress reduction skills and challenge distressing thoughts, and identifying strategies in the classroom and at home for preventing outbursts. Ms Gardner says that Mr Mears has shown commitment and motivation in addressing the problem. She recommends ongoing therapy, and ‘support in his working environment’. Mr Mears’ wife told Ms Gardner in April 2012 that there had been improvement in Mr Mears’ mood and behaviour at home, with Mr Mears better recognising his emotional state. There had been no further outbursts at home.
Improvement in the school setting was noted by Mr Wakefield, the head of the relevant curriculum area. Mr Wakefield’s letter is undated but it must have been written in August or September 2011. Mr Wakefield said that he had observed improvements. Mr Mears had developed a calmer demeanour, greater patience, and an ability to discuss issues and frustrations with his peers.
Macrossans Lawyers draw attention to comments made by Ms Graham, a departmental investigator, in the course of an interview with Mr Mears on 24 May 2011. Responding to a comment by Mr Mears that he does not snap out of the blue for nothing, Ms Graham commented that none of the students had suggested that he did. She continued:
They were saying … this one was misbehaving or that one was misbehaving. They were talking when they shouldn’t have. But that then you got really angry and would swear at them or swear at the class in general.
… The kids were saying … he’s really improved … He has been trying hard. … They think you’re a really good teacher but they are concerned about you.
In response to questions from the College, Ms Gardner has advised that in therapy Mr Mears ‘has denied any physical aggression’. It is apparent from Ms Gardner’s report of 28 June 2012 that Mr Mears had either denied or not disclosed the physical incidents (of 2011 at least). In his letter to the Tribunal dated 24 May 2012, Mr Mears acknowledged that they did occur. It is of concern to the Tribunal that Mr Mears has not been completely frank with Ms Gardner. While the interventions made by Ms Gardner would aid Mr Mears’ ability to control his physical as well as his verbal outbursts, the physical outbursts are serious matters that require specific attention in the treatment setting. Ms Gardner was not given the full picture when deciding how to treat Mr Mears.
Overall, the Tribunal accepts and finds that the psychological treatment has helped Mr Mears in addressing his problem of angry outbursts. It is desirable that Mr Mears continue with the treatment, and that he make a full and frank disclosure to Ms Gardner about the incidents that have occurred.
Although Mr Mears’ teacher’s registration has not been suspended to date, the Tribunal understands that he has not been working as a teacher since he was dismissed by the department. If Mr Mears seeks a teaching position in the future, Ms Gardner’s suggestion of support in the working environment is a sensible one. Mr Mears should also think about whether it would be best for him to make a fresh start, perhaps in a smaller school. He should evaluate the disciplinary policies and practices of the school. He should be proactive in asking for support, perhaps including by way of seeking out a mentoring relationship.
Is a ground for disciplinary action established?
Macrossans Lawyers do not contest the College’s submission that a ground for disciplinary action has been established.
The Tribunal recognises that teachers have a difficult job, especially when students are uncooperative or defiant. Nonetheless, the community reasonably expects that teachers will keep their frustrations in check, and find ways of avoiding outbursts of swearing and physical intimidation. Teachers are expected to model appropriate standards, as the department observed in its October 2011 letter. This includes appropriate ways of dealing with stress.
Clearly the incidents, especially those of February 2011, fell well below the standard of behaviour generally expected of a teacher. There were a number of incidents over several years, not merely one or two isolated events. They involved both physical and verbal impropriety of a serious nature. The later ones occurred despite efforts made by the department and by Mr Mears to avoid the repetition of such conduct. The number and nature of the incidents is such that the Tribunal finds that Mr Mears is not suitable to teach. Accordingly, a ground for disciplinary action has been established.
What disciplinary action should be taken?
The College submits that Mr Mears’ teacher’s registration should be suspended for 18 months from the date of the Tribunal’s order, and that before Mr Mears’ registration can be reinstated he must provide the College with a satisfactory independent psychological report addressing various matters. These matters are the ones that the Tribunal has incorporated into its orders. The Tribunal understands ‘independent’ to mean that the report is to be prepared by a psychologist other than Ms Gardner, the treating psychologist. Macrossans Lawyers submit that the orders proposed by the College are appropriate except that the period of suspension should be 12 rather than 18 months.
The College argues that the persistence of Mr Mears’ problems, despite past sanctions and attempts to address the problems, means that any improvement will take time. It points out that the 2011 incidents occurred after Mr Mears had been having treatment with Ms Gardner for over four months.
The College submits that the unsuitability in Mr Mears’ case is more profound than that of the teacher in Queensland College of Teachers v David Doherty, a case decided by the Tribunal in 2010.[1] The Tribunal prohibited the teacher, who was no longer registered, from reapplying for registration for 12 months. It recommended that any reapplication should be accompanied by a satisfactory psychological report. The College also drew the Tribunal’s attention to the case of Christopher Wayne Wilkin, a 2010 decision of a panel of the Disciplinary Proceedings Committee of the Victorian Institute of Teaching.[2] The panel cancelled the teacher’s registration in that case.
[1] [2010] QCAT 614.
[2] Available at under Conduct / Formal hearing decisions.
Macrossans Lawyers point out that most of the 18 sessions of therapy with Ms Gardner had not yet taken place when the 2011 incidents occurred. They submit that the period of suspension ought to be a period sufficient for the purpose of obtaining a satisfactory psychological report. They submit that there is evidence from several sources – Ms Gardner, Ms Graham and Mr Wakefield – that Mr Mears has made real progress in addressing his problems. They point out that no further incidents occurred between 31 March and 17 October 2011, when Mr Mears was dismissed at the conclusion of the investigation. Macrossans Lawyers submit that 12 months would be a sufficient period in these circumstances, and might allow Mr Mears to seek employment from the beginning of the 2014 school year.
There is no expert evidence before the Tribunal as to how long it is likely to take for Mr Mears to obtain a satisfactory psychological report. Macrossans Lawyers suggest 12 months. This suggestion was, however, made before Ms Gardner wrote her report indicating that Mr Mears had not disclosed that physical incidents had occurred. The College presumably thinks that at least 18 months is required. The Tribunal is not in a position to make a firm finding on this issue, but it considers that the range of 12 to 18 months is reasonable.
The time needed for psychological intervention is not the only relevant matter. While it is not the role of the Tribunal to punish Mr Mears, it is appropriate for its decision to signal the community’s disapproval of the lapses in his behaviour, in an attempt to guard against future lapses. This is part of achieving the objects of the Act, by reinforcing teaching standards, promoting public confidence in the teaching profession, and endeavouring to ensure that any teaching work Mr Mears undertakes in the future is done in a fully professional manner.
It is also relevant, for the sake of consistency, to have regard to sanctions imposed in the other cases cited. In the case of Wilkin, the more serious sanction of cancellation was imposed. There were only two incidents, within a month of each other, but both involved physical contact. The second incident was quite serious. It involved the teacher calling a male year 8 student back into the classroom after class, closing the door, and twice pushing the student to the ground. The second push was over some distance, and it involved the student falling down over a desk. His head hit the desk and his shorts were torn. The panel found that the teacher had a very limited insight into the broader issues and implications of his conduct, and more than a passing tendency to blame others for his unacceptable behaviour.
While Mr Mears has a longer history of problems than Mr Wilkin, the main incident involved in the Wilkin case, which was quite a serious assault, appears to have been premeditated to some extent at least. The teacher closed the door to minimise the risk of being observed. Those factors were not present in Mr Mears’ behaviour. Also of significance is the fact that Mr Mears has better insight into his problems and, in contrast to Mr Wilkins, a willingness to address them. These differences tend to suggest that the sanction imposed on Mr Mears should not be as heavy as that imposed on Mr Wilkin, despite the larger number of incidents.
The Doherty case involved nine incidents of various types, both verbal and physical. They were broadly similar in seriousness to the incidents in Mr Mears’ case. However, Mr Doherty had not previously been disciplined. The fact that Mr Mears had been disciplined a number of times before the 2011 incidents would tend to suggest that a heavier sanction would be warranted than the 12 month exclusion that was imposed on Mr Doherty.
Having regard to the various factors discussed above, the Tribunal considers that a 15 month period of suspension is appropriate. It is mid-point in the range suggested by the parties for how long should be allowed for psychological intervention. It imposes a sanction within the range of the two cases cited. It sends a signal to Mr Mears, who is otherwise a good teacher, that verbal and physical outbursts are not acceptable from the community’s perspective.
The effect of the orders will be that Mr Mears’ registration will be suspended for 15 months, or if necessary for such longer period as is required for Mr Mears to obtain a satisfactory psychological report.
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