Queensland College of Teachers v Rudd
[2011] QCAT 367
•27 July 2011
| CITATION: | Queensland College of Teachers v Rudd [2011] QCAT 367 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Sarah Margaret Rudd (Respondent) |
| APPLICATION NUMBER: | OCR138-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 5 May 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Michelle Howard, Presiding Member Professor A Ashman, Member Ms Robyn Oliver, Member |
| DELIVERED ON: | 27 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Publication of any information which may enable the identification of the complainant student or any other student, their schools or other personal information is prohibited; 2. That the register be endorsed with a notation that any application of the respondent teacher for re-registration be accompanied by a psychologist’s report which includes an assessment of the following: (1) Differentiating between personal and professional relationships; (2) The legal obligations of teachers and tutors; (3) Development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students; (4) Risk assessment and early issue identification of potentially problematic situations and venue as well as initiating realistic solutions for avoiding the risk of harm to students; (5) An in-depth examination of the extent and nature of the student, colleague, parental and community trust inherently invested in a teacher or tutor; (6) Personal and social behaviour that would compromise the professional standing of a teacher and a profession of teaching; (7) What constitutes inappropriate communication; (8) Understanding the effect of inappropriate relationships with students; (9) The awareness of the trust and power granted to a teacher; (10) Understanding and full adherence to the Queensland College of Teachers Code of Ethics. The psychological report to include: (a) an indication by the psychologist about whether the psychologist is satisfied that Sarah Margaret Rudd has adequately understood and addressed the above points. (b) Reference to the psychologist being provided with copies of: (i) This decision; (ii) The reasons for the decision. 3. That the respondent pay to the Queensland College of Teachers within 28 days costs in the sum of $385. |
| CATCHWORDS: | TEACHER – fitness to teach – where teacher contacted student via digital networks – where teacher engaged in inappropriate communications with the student NON-PUBLICATION – of complainant’s identifying information – in interests of justice Education (Queensland College of Teachers) Act 2005, ss 3, 12(3), 12A, 92(1)(h), 160(2)(d) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr J S Gormley |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
The Queensland College of Teachers (QCT) made a referral to the Tribunal for a determination whether a disciplinary ground is established regarding Sarah Margaret Rudd (the teacher). The referral was made by QCT under section 97 of the Education (Queensland College of Teachers) Act 2005 (the Act) in June 2010.
The QCT alleges, in essence, that the teacher inappropriately conducted herself towards a Year 9 student (the student), (including giving the student mobile phone credit; meeting with the student at shopping centres; and offering to become the student’s legal guardian); inappropriately communicated with the student by phone, SMS, email and social networking sites; and breached policies of the employing authority and the QCT aimed at protecting the welfare and best interests of children and upholding the standards of the teaching profession.
The QCT suspended Miss Rudd’s teacher registration on 10 June 2010. Her registration subsequently lapsed in late March 2011. Therefore, she was a former approved teacher at the time of the hearing.
Ms Rudd did not attend the hearing or participate in any way in the proceeding. Initially, documents served on Miss Rudd at the address held in the QCT’s database were returned unclaimed. QCT then engaged the services of IDS Group to make enquiries that led ultimately to the identification of Miss Rudd’s current address. Mr Gormley advised the tribunal that while he had not spoken directly with Ms Rudd, he had received a voice mail phone message from a person identifying herself as the teacher who confirmed the residential address located by the IDS Group.
Documents in the proceedings were then served at the address and notice of the hearing given to the teacher at the address. The tribunal was satisfied that Ms Rudd was given the documents and notice of the hearing at her last known residential address as required by the Queensland Civil and Administrative Tribunal Rules 2009, rule 39(1)(b) and 2(b)(i), and Queensland Civil and Administrative Tribunal Practice Direction No. 8 of 2009.
QCT seeks an order in order to protect the identity of the complainant student (the student) and in particular, seeks an order prohibiting publication of the name, addresses and schools of the child student involved in the incidents said to give rise to the disciplinary proceedings. QCT also seeks an order for costs against the teacher for $385 being the costs of engaging IDS Group to locate the teacher’s current address.
Applicable Law
Section 92 of the Act provides for grounds for disciplinary action. The grounds include, in section 92(1)(h), that the teacher is not suitable to teach. Sections 11, 12 and 12A sets out matters which must be considered when considering whether a person is suitable to teach. Section 12(3) provides that, amongst other things, 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, or otherwise behaves in a way that shows the person is unfit to be granted registration or permission to teach.
Under section 158(1) of the Act, as soon as practicable, after concluding the hearing the Tribunal must decide whether a ground for disciplinary action against the teacher has been established. If the Tribunal decides that a ground for disciplinary action has been established against a former approved teacher, under section 161(2) of the Act, it may do one or more of the following:
(a) decide to take no further action in relation to the matter;
(b) make an order requiring the teacher to pay to the college, by way of costs, an amount QCAT considers appropriate having regard to--
(i) any expenses incurred by the college in investigating the matter; and
(ii) the expenses incurred by the college in the proceedings before QCAT;
(c) if QCAT would have made an order cancelling the teacher's registration or permission to teach if the teacher had been an approved teacher--make an order prohibiting the teacher from reapplying for registration or permission to teach for not more than 5 years from the day the order is made;
(d) make an order that a particular notation or endorsement about the teacher be entered in the register.The provision in section 161(2)(b) confers a broad and general discretion to award costs.[1]
[1]Under the QCAT Act, each party bears their own costs subject to the QCAT Act or an enabling Act: s 100. This has been accepted as suggesting a strong intention that parties bear their own costs: Lyons v Dreamstarters Pty Ltd [2011] QCATA 142 [30]. However, sections 6(7) and 7 of the QCAT Act provide for a provision in an enabling Act to modify the QCAT Act and for the modifying provisions to prevail over the provisions of the QCAT Act. In Lyons v Dreamstarters Pty Ltd [2011] QCATA 142, the effect of a modifying costs provision was considered.
Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), provides that the Tribunal may make a non-publication order prohibiting, among other things, the publication of information which may enable a person involved in or affected by the proceeding to be identified. An order may be made for reasons including, to avoid the publication of information which would be contrary to the public interest. The Tribunal may make a non-publication order upon the application of a party or on its own initiative.
The evidence and findings of fact
Ms Rudd was employed as first year teacher at a regional Queensland high school from January 2009 to December 2009. She taught the student in term 1. The student, who was vulnerable, then returned to her home elsewhere in Queensland at the end of term 1 and ceased attending the school.
In context, Ms Rudd was a first year teacher who was not given training on the DET Code of Conduct until fourth term 2009: her actions which led to these disciplinary proceedings occurred largely, if not wholly before the training was provided to her. The school principal confirms that Ms Rudd spoke with him about her concerns for the complainant student on several occasions while the student attended the school. He confirms that he thought it was important for the lines of communication to be open, given the student’s approaches to the teacher, in light of her vulnerability.
A part-time guidance officer at the school gave a statement to the effect that she warned Ms Rudd to be careful in her interactions with the student and aware of the limits of what she could do.
The allegations, except the allegation that the teacher offered to become the student’s guardian which is said to have occurred during the time the student attended the high school and after she had left, relate to events which QCT alleges occurred after the student left the school.
A large volume of evidence was provided by QCT, including multiple statements from the teacher, the student, as well as the student’s mother, other students and various teachers. Unhelpfully, different versions of events are frequently presented in subsequent statements. The student significantly changed her evidence substantially during her third interview.
The evidence regarding each of the allegations which QCT relies upon is considered briefly below.
Inappropriate Conduct
The teacher admits that she met the student at a shopping centre during school holidays in 2009 and that they attended a movie together. There is some evidence from the student in her final statement that she met up with the teacher on a second occasion at a shopping centre, although she had earlier denied meeting her at all. There is some hearsay evidence of other students which supports that the student told other students of the arrangement.
The tribunal accepts that on at least one occasion, they met at a Brisbane shopping centre outside of school term.
In the transcript of her interview conducted on 24 November 2009, Miss Rudd refers to a conversation with the student about emancipation early in term 1, 2009. She says that she indicated to the student that as far as she knew it was not available in Australia but if it did occur, the student ‘would need someone to go to if it was’. When the student told her she had no-one to go to she told her that ‘if you have no one else you can live with me because I’ve always wanted to be a foster mum’. The teacher went on to say that once she had said the words, she regretted it immediately and went to her principal with her concern for the student.
The teacher asserted that she recognised that she should not have made the comment and went on to say that she began to distance herself from the student, realised that she was becoming more involved with the student than she should be, and also unsure of her role when dealing with such a student. Despite her reluctance to engage, the student continued to approach Miss Rudd.
A former flatmate of Ms Rudd, another first year teacher with whom she shared until June 2009, speaks about ongoing conversations with the teacher during that period in which the teacher spoke of establishing a legal relationship between herself and the student. The student in her third interview says that after leaving the school, she and the teacher had discussions via email about this about twice each month. Another student said that she saw email which referred to the student getting emancipated and being adopted by the teacher.
The tribunal accepts that the teacher offered to become the child’s legal guardian, and that there were some ongoing discussions to this effect between the student and the teacher.
It is alleged that the teacher gave the student mobile phone credit after the student had left the school. Both the teacher and the student denied the allegation. Copies of extracts from emails between the student and the teacher provided by the student’s mother, includes comments which suggest that Miss Rudd did provide credit for the student’s mobile phone account. Ms Rudd however, denied responsibility when confronted with the evidence suggesting someone else may have accessed her Facebook account. The student, even in her third statement, in which she corrected other aspects of her previous evidence which she said was incorrect, denied that the teacher gave her phone credit.
The copies of the email are said to be, in essence, incomplete extracts. It is not apparent whether they have been added to in any way. The tribunal considers, having regard to the requisite standard of proof, that it would be inappropriate to rely upon the extracts as having any probative value. In the circumstances, the tribunal does not accept on the balance of probabilities that the teacher provided mobile phone credit to the student.
Inappropriate communication
The evidence of the teacher, the student and the various other witnesses is contradictory about the extent of the contact between the teacher and the student through text messaging, email, on-line chat and social networking sites. However, the teacher admits to text messaging, and Facebook contact. She suggests it was occasional and that she deleted the student from her Facebook friends after Code of Conduct training in term 4 made it clear that this was inappropriate.
The student in her third statement says that text messaging occurred more than once daily, and that they also spoke on the weekends. She also says that email contact was daily after she left the school. The evidence of other students who went through the student’s email records confirm that this was the case.
The tribunal accepts on the balance of probabilities that there was regular text messaging, Facebook contact and email between the student and the teacher after the student left the school.
The QCT alleges that the teacher engaged in inappropriate physical contact with the complainant student in that she and the student hugged on at least two occasions. The teacher admitted in interview that she hugged the student, in following terms, ‘Well then I gave her a quick hug at that point and said okay, see you later, have fun and I left’.
Policy
The Department of Education Training and the Arts (DET) Code of Conduct in section 2.3.2, requires interactions with students to be professional at all times. In particular, spending significant time alone with a student other than to perform the teacher’s professional duties is referred to as raising the possibility of the Code being breached. Inappropriate touching is stated to be misconduct. The QCT Code of Ethics includes a responsibility to create and maintain appropriate professional relationships.
Discussion and Decision
The tribunal must determine whether there are grounds for disciplinary action against the teacher. It has accepted that Ms Rudd met the student at a shopping centre; offered to become her legal guardian; regularly communicated with the student by electronic media after she left the school; and hugged the student on two occasions.
The QCT submits that Ms Rudd’s behaviour, which occurred over a protracted period, demonstrates a lack of professional detachment. The tribunal accepts that this behaviour is not consistent with the maintenance of a professional relationship with the student as is required by the DET and QCT Codes of Conduct. The tribunal also considers that it constitutes behaviour which does not satisfy the standard of behaviour generally expected of a teacher as referred to in section 12(3) of the Act.
There are some potentially mitigating factors. Ms Rudd was a first year teacher. She did not receive Code of Conduct training until term 4 of that year. Her principal considered keeping the lines of communication open with the student important given her vulnerability. The teacher was living in a small community. However, she was not entirely without support, and the guidance officer had warned her to be careful in her interactions with the student.
Further, QCT argues that the teacher minimised her behaviour in the interviews conducted throughout the investigation and that therefore, there is no evidence that the teacher has insight into the inappropriateness of her conduct.
QCT seeks an order prohibiting the teacher from re-applying for registration for one year, and an order that should she reapply for registration as a teacher, that her application include a psychologist’s report dealing with matters relating to the establishment and maintenance of personal and professional boundaries when dealing with students, legal obligations of teachers and tutors, and an awareness of the trust and power granted to teachers.
The tribunal considers Miss Rudd’s inexperience and the delay in her training about the code of conduct, and the limited support and guidance provided to her as a newly qualified teacher in a rural community to be relevant mitigating factors, although they do not overcome entirely her apparent lack of insight into the inappropriate behaviour.
Ms Rudd’s teacher registration was suspended on 10 June 2010 and the suspension was current until her registration expired in late March 2011. Accordingly, she was suspended for some 9 months before becoming a former approved teacher. At hearing, QCT acknowledged that 9 months suspension was in range of appropriate sanction for the behaviour alleged.
The Tribunal considers, given the mitigating factors referred to, that Ms Rudd’s period of suspension is adequate in the circumstances. Accordingly, a further period of prohibition during which Ms Rudd may not seek re-registration is not imposed. However, the tribunal is satisfied that it is appropriate to order that any reapplication for registration include a psychologist’s report addressing certain issues as set out in the tribunal’s orders.
In relation to its application for costs, the QCT argues that under section 71 of the Act, the teacher had an obligation as an approved teacher to keep the QCT informed of details including her address. QCT submits that because she did not, it incurred the costs of IDS Group to locate her for the purposes of these proceedings.
The obligation in section 71 is imposed on approved teachers. The referral of the disciplinary matter to the tribunal was filed on 11 June 2010. Ms Rudd’s teacher registration was suspended about that time. From that time, QCT attempted to serve documents upon her. Ms Rudd did not become a former approved teacher as of March 2011. The teacher failed to keep the QCT advised of her current address while she was an approved teacher resulting in QCT having to engage IDS Group to locate her. In the circumstances, it is appropriate for an order to be made under section 161(2)(b) of the Act, requiring that Ms Rudd pay for the costs incurred by QCT in locating her through IDS Group in the sum of $385.
Regarding the application for a non-publication order, the evidence before the tribunal contains the names, schools and other personal details of not only the student, but various other students. It is not in the public interest for the student or other children, their schools and other circumstances to be publicly disclosed. Accordingly, the tribunal makes an order pursuant to section 66 of the QCAT Act prohibiting the publication of any information which may enable the student and other students, their schools or other personal information to be identified.
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