Queensland College of Teachers v NBC - [2015] QCAT 246

CITATION:

Queensland College of Teachers v NBC [2015] QCAT 246

PARTIES:	Queensland College of Teachers (Applicant)
v
Mr NBC (Respondent)

APPLICATION NUMBER:

OCR006-15

MATTER TYPE:	Occupational regulation matters
HEARING DATE:	8 May 2015

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski
Member Paratz
Member Grigg

DELIVERED ON:

24 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr NBC’s registration as a teacher is cancelled.

2. Mr NBC is prohibited from applying for re-registration until after 30 June 2021.

3. The register of teachers is to be endorsed with a notation that any application by Mr NBC for re-registration must be accompanied by a report by a psychologist addressing the following:

a. Mr NBC’s general suitability to teach and work in a child-related field;

b. Awareness of what constitutes appropriate and inappropriate communication and behaviour with children;

c. Awareness of behaviour including behaviour in the private sphere which may compromise the professional standing of a teacher and the profession of teaching;

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

e. Understanding of the importance of full adherence to the Queensland College of Teachers’ Code of Ethics;

f. Whether, in the opinion of the psychologist, Mr NBC has adequately understood and addressed these points; and

g. Confirmation that the psychologist has read the tribunal’s decision and reasons in this matter.

4. Mr NBC must pay $2,500 to the Queensland College of Teachers by 31 December 2015 by way of costs.

5. Publication of the names and any identifying particulars of the students, the teacher and the school involved in this matter is prohibited, except that if a school employing or contemplating employing Mr NBC enquires with the Queensland College of Teachers about Mr NBC’s disciplinary history the College may disclose that Mr NBC was the teacher in respect of whom this referral was made and to whom the following reasons relate.

CATCHWORDS:

Occupational regulation matters - teacher not suitable to teach – sexual communications with students – sexual advances to students – over-familiarity and over-disclosure to students

Education (Queensland College of Teachers) Act 2005 (Qld) s 92(1)(h)

APPEARANCES:

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

REASONS FOR DECISION

Introduction

Mr NBC is a high school teacher who was registered to teach in 2002. The Queensland College of Teachers suspended his registration on 21 January 2015 after becoming aware of sexual communications and other inappropriate behaviour by Mr NBC involving several female students. The College referred the matter to QCAT, which is a disciplinary body for teachers.[1]
[1]Education (Queensland College of Teachers) Act 2005 (Qld) Chapter 6.
We must decide whether a ground is established for disciplinary action, and if so, what disciplinary action is appropriate.
Agreed facts
The facts outlined below are not in dispute, and we find that they occurred. The incidents occurred mainly in 2014, with one having occurred in 2013. In 2014 Mr NBC was the year 12 coordinator at the school where he had taught since 2005. He was 34 years of age at the time of the 2014 incidents.
The College points out that in 2009 or 2010 a lawyer had given a presentation to the teachers at the school in which she emphasised that teachers must not be friends with students on Facebook or other social media.
The first of the particularised incidents occurred in or around term 2 of 2013. Mr NBC commented on more than one occasion to another teacher about the colour of students’ bras.
On an occasion in 2014 Mr NBC commented to the same teacher that she had “quite a bunch of cuties” in her class, nominating two year 8 girls in particular.
On another occasion in 2014 that teacher came into the classroom where Mr NBC was teaching senior science, to collect a sausage casing to be used in an experiment to demonstrate osmosis. Mr NBC said, in the presence of the students, words to the effect of “Have you come to collect your condom?”
Mr NBC conducted extensive email, Skype and text communication with a year 12 student in the months February to April 2014, relating to sexual and other personal themes. He praised the student’s appearance and personality. They discussed topics such as bathing, the student’s breasts, his desire to hug her, the teacher’s unhappy marriage, and sexual abuse he had suffered in his youth. Mr NBC emailed the student photographs of himself including one in which he was shirtless and another of his thigh and part of his penis. He bought the student phone credit on two occasions. He advised the student of some likely examination questions. At school Mr NBC would frequently stand close to the student and whisper in her ear or smell her hair.
One afternoon Mr NBC accompanied the student while she donated blood after school. This was with her mother’s permission. While driving the student home after this, Mr NBC attempted to hold the student’s hand. He also kissed her hand.
One night during the Easter holidays Mr NBC saw the student in the central business district. She accepted his offer to go for a drive. He gave her a gift of chocolate. They drove to a look-out where he started rubbing her legs and attempting to hold her hand. He attempted several times to kiss her. The student did not reciprocate his interest. She felt vulnerable because they were alone in a car some distance from town. Mr NBC eventually desisted and drove the student back into town.
One night soon after this Mr NBC emailed the student asking her to meet him near her home. She declined. He left a rose for her on a fence at her home. On another occasion at around this time, Mr NBC left a bag of Easter eggs and other chocolates on the fence for the student. When school resumed the student avoided contact with Mr NBC, and started having lengthy absences from school.
Another incident involved Mr NBC having increasingly sexualised communications with another year 12 student over a few days in March 2014. In email exchanges he praised her appearance; they discussed what she wore to bed; and he said he would love to give her a wake up kiss and hug. In a Skype exchange he told the student that he did not like his wife any more. He asked the student to imagine him kissing her thighs and fingering her. He was shirtless and referred to having an erection. The next day the student emailed Mr NBC and apologised for engaging in the exchanges the previous night. She said: “I can’t do that while you’re my teacher, it’s too far”. Mr NBC responded saying that they “should forgive and move on” and that he would still like to “chat tonight if you want. Be nice to just talk and move forward”. During an examination that day Mr NBC stared at the student. He put his arm around her and put his face close to hers. Later that day the student emailed the teacher asking him to leave her alone, and he then desisted.
Mr NBC communicated via Skype with another year 12 student during term 2 in 2014. On approximately three occasions he went to the supermarket where she worked and purchased items at her checkout. He then sent her comments to the effect that she looked attractive in her work uniform and that he liked her lipstick. He asked the student to recommend a movie. She suggested a streaming website, and Mr NBC later commented that there were R rated movies on the site.
Mr NBC had a number of inappropriate contacts with a year 10 student during 2014. On one occasion during term 1 he spent an entire lunch break conversing with her. On another occasion he conversed with her at some length while she was waiting to depart for school camp, and handed over her anti-depressant medication to the teacher collecting students’ medications. Another time he allowed the student to “chill out” outside his classroom while she was supposed to be in another lesson. When the student was being reprimanded by another teacher, he offered to talk to the student. The other teacher agreed. Mr NBC then talked with the student for 20 or more minutes. He then reported back to the teacher, in an excited voice, that he was helping the student because she had a history of “sleeping around” and was being teased about it. The College points out that it was the role of the school counsellor, not Mr NBC, to counsel students experiencing personal problems.
At various times during 2014 Mr NBC discussed personal matters with a year 11 student who suffered from anxiety and depression. He spoke with the student at length about her mental health and encouraged her to take medication. He told the student that he too suffered from anxiety and depression. He told her about his marital problems and said that he was on anti-depressant medication. He encouraged her to attend his classroom during spare periods and she did so on at least one occasion. Mr NBC had the student’s mobile number (obtained legitimately for use if necessary during a school excursion) but soon after his employment was terminated in August 2014 he used the number, as well as email, to communicate with the student about matters unrelated to school. He discussed his marital problems and asked the student about whether she had broken up with her boyfriend.
In August 2014 the school terminated Mr NBC’s employment after receiving reports of his inappropriate behaviour. Mr NBC says, and we accept, that he attempted to resign when he learned of the investigation, but the school opted to dismiss him instead.
Ground for disciplinary action
It is undisputed, and we find, that Mr NBC is not suitable to teach. He demonstrated sexual interest in several students. He engaged in social media communication with a number of students despite a school ban on such contact. Much of the content of the social media and email exchanges was sexually driven. He gave examination tips to a student in the course of such an exchange. He made repeated sexual advances to that student in his car one night. All of this behaviour was disgraceful and improper, and shows that Mr NBC is unfit to be registered as a teacher.[2]
[2]Education (Queensland College of Teachers) Act 2005 (Qld) s 12(3)(b).
Mr NBC made an inappropriate sexual comment about a sausage casing to a class. He treated some students more favourably than others. Many students commented when interviewed during the investigation that Mr NBC favoured girls over boys in class. He was also over-familiar with a number of students. He disclosed personal matters to them, and discussed their personal problems as if he was their counsellor. Even if this was not sexually driven, it was behaviour that does not satisfy a standard of behaviour expected of a teacher. This too shows that Mr NBC is not suitable to teach.[3]
[3]Ibid s 12(3)(a).
Teachers are expected to maintain proper professional boundaries in their dealings with students. In multiple and often serious ways Mr NBC failed to do this. He is not suitable to teach. Therefore a ground for disciplinary action exists.[4]
[4]Ibid s 92(1)(h).
Disciplinary action
The purpose of disciplinary action is not to punish a teacher. Instead, it is to further the objects of the Education (Queensland College of Teachers) Act 2005 (Qld). These include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way.[5] It is essential that persons registered as teachers do not pose a risk of harm to children.[6] Although punishment is not the aim, deterrence is a relevant consideration: the sanction imposed must provide “general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question”.[7]
[5]Ibid s 3(1).
[6]Queensland College of Teachers v Genge [2011] QCAT 163 at [12].
[7]Queensland College of Teachers v Brady [2011] QCAT 464 at [55].
Various sanctions are available under section 160(2) of the Act. These include cancelling a teacher’s registration, prohibiting application for re-registration for a stated period or indefinitely, requiring a notation on the register, and requiring the teacher to pay an amount to the College for its costs of investigating the matter or bringing the proceeding in QCAT.
The College submits that Mr NBC displayed a complete lack of insight into what conduct was appropriate for a teacher. We do not believe that Mr NBC lacked such insight, at least so far as the more serious conduct is concerned. He was well aware that his sexual communications with students were illicit. For that reason he used his private email address; he asked students to delete photographs after viewing them; and so on.
The College submits that Mr NBC’s registration should be cancelled and that he should be prohibited from applying for re-registration for a lengthy period because he so grossly failed to prioritise the welfare of students. The College submits that Mr NBC should be excluded from the profession for eight years; that any application for re-registration should be accompanied by a detailed psychological report addressing a variety of relevant matters; and that Mr NBC should be required to pay $2,500 toward the costs incurred by the College in the QCAT proceeding. The College submits that its costs would well exceed $2,500, noting that the particulars of the referral alone ran to 38 pages, there was a compulsory conference, and detailed submissions were required. However, as a precise quantification of costs is not available, the College contends that $2,500 is an appropriately conservative figure. The College points out that it is funded by registration fees collected from teachers. It argues that it would be unfair for teachers generally to bear the costs occasioned by the misconduct of individuals such as Mr NBC. The College acknowledges, though, that costs have been contained in this case as a result of Mr NBC’s prompt willingness to admit his wrongdoing.
Mr NBC says that he was not able to control his conduct “due to a combination of extreme anxiety relating to my workload, the death of a student and the death of my grandmother”. He says that he and his wife had grown distant, and this added to his stress level. He says that since leaving the school he has been having psychological therapy with Mr Rodney Nembach, and marriage counselling, and that these measures will help him to avoid future misconduct. He says he is deeply ashamed of what he did and that he regrets the impact on the students and parents who, he acknowledges, trusted him. He wishes to return to the teaching profession.
Mr Nembach provided a report in February 2015 confirming that Mr NBC has been attending therapy. Mr Nembach’s diagnoses are adjustment disorder with mixed anxiety and depressed mood, and autistic spectrum disorder. Future therapy is intended to focus, amongst other things, on appropriate behaviour in professional settings and the impact of behaviour on students. Mr Nembach says that the conditions may have contributed to the misconduct: high levels of anxiety and stress may have clouded Mr NBC’s judgment and the autistic spectrum disorder is associated with poor empathy skills. Mr Nembach says that at least 12 months of intensive therapy is needed before Mr NBC might again be suitable to teach.
Mr Nembach’s opinion about the effect of Mr NBC’s conditions on his misconduct is rather tentative. We certainly do not accept the statement made by Mr NBC that he was unable to control himself. There is, of course, no excuse for Mr NBC’s attempts to gain sexual gratification from the students he was entrusted to teach. On the other hand, it is likely that Mr NBC is remorseful and that he has gained insight as a result of the disciplinary process. We accept that he is motivated to avoid conduct that might jeopardise any future teaching career.
Mr NBC opposes a cost sanction. He says that he has been unable to find work and he is living on dwindling savings. He says his wife is not earning much and they cannot meet all of their financial obligations. He says he is concerned that a costs order could bankrupt him and his wife. He adds: “this is already a VERY stressful time for me and financial burden could push me over the edge”. He says he has never disputed the allegations, and he would have accepted a ban even if the matter had not been referred to QCAT. Therefore he questions why he should be required to pay costs.
We note that a referral to QCAT was mandatory in this case, once the College (quite properly) suspended Mr NBC’s registration.[8] We do not accept that a costs order for $2,500 is likely to push a person into bankruptcy. However, in view of Mr NBC’s unemployment, it is appropriate to allow a reasonable time for the payment of costs.
[8]Education (Queensland College of Teachers) Act 2005 (Qld) s 97(3).
Mr NBC submits that a period of prohibition of four years from 15 August 2014, the date of his attempted resignation, would be appropriate.
The parties have discussed two comparable cases: Queensland College of Teachers v Harvison[9] and Queensland College of Teachers v WAS.[10]
[9][2013] QCAT 684.
[10][2015] QCAT 61.
Harvison involved a teacher who engaged in over-familiar and sexualised social media exchanges with a number of high school students and a recent former student. For example in a Skype video link with the former student, the teacher lay naked on a couch and played with his penis. The teacher massaged and otherwise inappropriately touched a number of students. He made sexual comments to students in the playground and in class. He tried to persuade a student to come to his home. The conduct spanned a five year period from soon after the teacher was registered. The teacher admitted only some of the conduct and denied any wrongdoing. The period of prohibition imposed was five years from the date on which the teacher’s registration was suspended.
WAS involved a romantic and ultimately sexual relationship over about three months between a teacher and a year 11 student. This occurred about five years after the teacher was registered. The teacher and the student exchanged many messages on social media, and the teacher gave the student gifts. They had sexual intercourse on at least three occasions in the student’s bedroom. The teacher gave extra help to the student with her schoolwork, and discussed staff and other students with her. The teacher admitted the wrongdoing. The period of prohibition imposed was six years from the date on which the teacher’s registration was suspended.
Mr NBC submits that the conduct in his case was not as serious as in Harvison. The College submits that the conduct in Mr NBC’s case is more serious than that in WAS because WAS involved only one student, and she consented.
Consent or the lack of consent is not itself a critical factor because it is wrong for a teacher to make sexual advances to a student even if the student is consenting. However, there may be a greater psychological impact on students in situations where consent is absent. In Mr NBC’s case, there was student cooperation in relation to some of the sexual communication. Some of the conduct, though, was definitely unwelcome. In two instances Mr NBC persisted despite students indicating that they did not want him to. When Mr NBC drove the student to the look-out, she felt scared because she was in a vulnerable position. This is a serious feature.
It is difficult to precisely rank cases because of the number of variables at play. Overall, we regard the conduct in Mr NBC’s case as somewhat more concerning than that in the two comparable cases. Mr NBC was a more experienced teacher. He exploited his position of trust with several students, including placing one in a position where she felt concerned for her safety. He acted inappropriately not only sexually, but also in other ways including by favouring particular students at school and girls in general.

In our view the appropriate period of prohibition in Mr NBC’s case is the period ending on 30 June 2021, effectively almost six and a half years from the date on which Mr NBC’s registration was suspended. It is also appropriate to require Mr NBC to provide a satisfactory psychological report if he applies for re-registration, and to require him to pay $2,500 towards the College’s costs of the QCAT proceeding.
Non-publication order
The tribunal can make a non-publication order if it considers it necessary to avoid endangering a person’s mental health or for another reason in the interests of justice.[11]
[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66.
It would clearly be undesirable for the students to have their names publicised. Mr Nembach, the psychologist, considers that Mr NBC’s risk of suicide is extremely high, and that publication of his name could further exacerbate the risk. We have no reason to doubt this evidence. Publication of the name of the school would almost inevitably lead to identification of the teacher by people in the local community. Accordingly, a non-publication order is warranted. The reasons for the tribunal’s decision in this matter will be published, other than to the parties, with the teacher’s name shown only as Mr NBC.
Conclusion
Mr NBC demonstrated in multiple ways in 2014 that he is not suitable to teach. The seriousness of his conduct is such that a lengthy period of exclusion from the teaching profession is warranted in order to uphold standards and protect students. However, as Mr NBC is taking steps to rehabilitate himself, permanent exclusion is not necessary. The requirement for a satisfactory psychological report in due course serves as a further protective measure.