Queensland College of Teachers v Smith
[2011] QCAT 704
•22 December 2011
| CITATION: | Queensland College of Teachers v Smith [2011] QCAT 704 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Laurence John Smith (Respondent) |
| APPLICATION NUMBER: | OCR121-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 8 December 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard Presiding Member John Bertelsen, Member Robyn Oliver, Member |
| DELIVERED ON: | 22 December 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. 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 assessment of Mr Smith’s appreciation of the following: a. Actively determining and implementing professional boundaries with individual students, specifically: i) when it is appropriate and when it is not appropriate for a teacher to touch a student; ii) awareness of and sensitivity to students’ personal space; b. Knowledge of and sensitivity to the needs of vulnerable children; c. Anger management techniques; d. Knowledge of what constitutes appropriate communication, including electronic communication, with children; e. The extent and nature of the student, colleague, parental and community trust inherently invested in a teacher; i) Including the trust and power granted to a teacher; f. The importance of full adherence to the QCT Code of Ethics; g. An indication whether or not the psychologist is satisfied that Mr Smith has adequately understood and addressed the above points; h. Confirmation that the psychologist was provided with copies of: i) This decision; ii) The amended s 97 referral. |
| CATCHWORDS: | DISCIPLINARY MATTER – FITNESS TO TEACH – where inappropriate physical contact between teacher and student – where inappropriate material appearing on a computer screen in view of young children in classroom setting – where comments of a sexual nature made to students Education (Queensland College of Teachers) Act 2003, ss 11, 12, 12A, 92, 158, 161 Briginshaw v Briginshaw (1938) 60 CLR 336 |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard on the papers pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The Queensland College of Teachers (QCT) referred a disciplinary proceeding to the tribunal for a determination whether a ground for disciplinary action against Mr Smith (the teacher) is established under the Education (Queensland College of Teachers) Act 2003 (the Act).
Mr Smith was first registered as a teacher in September 1976. He subsequently applied to renew of his registration in January 2006. His registration expired on 6 November 2011. Therefore, he is a former approved teacher under the Act.
Mr Smith resigned from his teaching position at a Queensland catholic school effective in August 2009. He is aged 62 years. The allegations giving rise to the referral all occurred while Mr Smith was teaching a composite class from grades 5, 6 and 7, comprising about 14 students during 2008 and 2009.
The five allegations against Mr Smith brought to the tribunal by QCT for consideration may be summarised as follows:
i) Mr Smith had inappropriate physical contact with two female students, whom we shall refer to as students J and H, aged 11 and 10 years, respectively when putting his arm around them;
ii) Accessing or allowing to be displayed on a classroom computer, material of an inappropriate nature, namely, images of naked or scantily clad women, which was seen by students, namely student J, and students N and TC;
iii) Breaching policies of the relevant employing authority, Catholic Education, and the professional registration authority, QCT;
iv) Inappropriate physical contact with a student in 2008 by grabbing a male student, whom we shall refer to as T, aged 11, by the collar or back of shirt and pulling him backwards;
v) Inappropriate communication with students on diverse dates in 2008 and 2009, by making of comments of a sexual nature to students J and H.
Each allegation and the evidence relied upon in respect of it is considered separately. Allegation 3 is logically considered last. The evidence mainly consisted of interview transcripts with the students in Mr Smith’s class, the principal of the school and copies of the relevant Catholic Education Office, Code of Conduct and the QCT Code of Ethics.
Mr Smith responded briefly in writing to QCT in respect of the original notice of investigation which contained essentially allegations (i)-(iii) above, although allegation (i) at that stage related only to student J. He denied those allegations.
Although he was given proper notice of the application and the hearing, Mr Smith did not participate in the proceeding, and did not provide any evidence to the tribunal or make submissions.
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 set 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.
[10] 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.
Are grounds for disciplinary action established?
[11] The tribunal must reach its own conclusion whether a ground for disciplinary action has been established. The applicable standard of proof is the balance of probabilities, the degree of satisfaction varying according to the gravity of the fact to be proved.[1]
[1] Briginshaw v Briginshaw (1938) 60 CLR 336.
Allegation 1: Inappropriate physical contact with J and H
[12] This allegation was denied by Mr Smith during the QCT investigation, in respect of student J.
[13] In the 2008 and 2009 when student J was in Year 5 and Year 6, she says that she sometimes discussed school-work related issues with Mr Smith at his desk which was at the back of the classroom. During these discussions, J says that Mr Smith placed his arm around her back and moved his fingers in a manner which made her feel uncomfortable. On one specific occasion, he touched her on or below her hipbone. J said that the teacher after putting his arm around her he’d ‘squeeze his fingers sort of’[2] and ‘then he squishes his fingers in somehow’[3], he ‘Like rubs and just rubs his fingers slowly’.[4]
[2] Affidavit of Mark Pollock filed 17 June 2011 p 59.
[3] Affidavit of Mark Pollock filed 17 June 2011 p 61.
[4] Affidavit of Mark Pollock filed 17 June 2011 p 62
[14] Student H, the best friend of student J, also reported Mr Smith placing his arm around her while she was receiving help for a work related issue. Student H said Mr Smith moved his hand up high on her back and down to her bottom. She said he just left it there but sometimes ‘Just moves it around and up and down’.[5] She felt uncomfortable with this behaviour.
[5] Affidavit of Mark Pollock filed 17 June 2011 p 139.
[15] Other female students interviewed reported that Mr Smith placed his arm around them in class at various times. They were not disturbed by this behaviour. One student reported that Mr Smith put his arm around all children in the class, including the boys, and “patted them on the back”.
[16] The evidence of the students is consistent in that all reported Mr Smith placing his arm around them. Two students reported that he placed his hand in inappropriate places, namely on the bottom or below the hipbone and accompanied by other hand movements. The details provided by the students are compelling. Each of them describes the occurrences in different ways although there is a similarity to what each alleges. The tribunal considers that if the actions were taken in respect of one of the students, it is likely that they also occurred in respect of the others.
[17] Mr Smith has denied the allegations concerning J, but not responded regarding the allegations regarding H. His denial is in general terms.
[18] The tribunal considers the evidence of the students is consistent, although not so similar as to be something these best friends rehearsed together, and compelling. It accepts their evidence.
[19] Further the tribunal considers that by putting his arm around the students in a manner so as to place his hand on the bottom of student H and below the hipbone of student J, and to sometimes then rub his hand on parts of their bodies, the teacher has not met the standard of behaviour generally expected of a teacher.
Allegation 2: Inappropriate material on classroom computer
[20] The teacher has denied this allegation.
[21] The evidence of TC, N and J is to the effect that they each saw a display of images of either naked or scantily clad women on Mr Smith’s computer while they were doing artwork at a table at the back of the classroom. The students’ reports suggest that the images appeared in the nature of a slide show.
[22] Student J says that she saw naked images.[6] The other two students, both of whom were male students, described seeing women in bikinis or underwear.[7]
[6] Affidavit of Mark Pollack filed 17 June 2011 p 76.
[7] Affidavit of Mark Pollack filed 17 June 2011 p 161, 164, 181.
[23] On the evening that this event occurred, the mother of student TC contacted the principal about it, as did student N’s parents the following morning. The principal made notes which indicate that the incident occurred on about 23 June 2009.
[24] The reports of the students about the incident demonstrate a high degree of consistency. Student J reports naked images, while the other students report scantily clad images of women. It is possible that not all of the students were looking in the direction of the computer at precisely the same time, and so the tribunal does not consider this is significant.
[25] The tribunal accepts that the teacher did display on his computer inappropriate images of naked and scantily clad women. There is no educational reason for the images to be displayed. The tribunal considers that the teacher’s behaviour in doing so, falls below the standard of behaviour generally expected of a teacher.
Allegation 4: Inappropriate physical conduct with student T
[26] The teacher has not responded to this allegation.
[27] There is evidence from Student T’s mother to the effect that he has an intellectual impairment and some difficulty with reading, writing and memory.[8]
[8] Affidavit of Mark Pollack filed 17 June 2011 p 109-110.
[28] Student T reported that on an occasion when Mr Smith was being ‘mean’ to another student, Student W, he asked why Mr Smith was mean to them while he was moving upstairs. He says that Mr Smith grabbed him with one hand on the back of the shirt and ‘reefed’ him back so that T fell on his bottom.[9] Student T left the school and went home.
[9] Affidavit of Mark Pollack filed 17 June 2011 p 151-154.
[29] Student W confirmed the incident, and that Mr Smith ‘yanked’ Student T from about the third step and he landed on his back on the cement.[10]
[10] Affidavit of Mark Pollack filed 17 June 2011 p 198, 200-202.
[30] Student T’s mother returned to the school with her son that day, and she reported that she spoke with Mr Smith who apologised acknowledging that what he had done was wrong.[11]
[11] Affidavit of Mark Pollack filed 17 June 2011 p 155-156
[31] The evidence given by Student T and Student W is consistent and compelling. Further, Student T’s mother’s later discussion with Mr Smith adds to the evidence about the incident. Further, according to the available evidence, it appears that Student T is a vulnerable student, it seems that he has at least learning difficulties and perhaps a disability. The tribunal accepts this evidence.
[32] It appears from Student T’s mother’s report that Mr Smith recognised shortly after the incident that his actions were inappropriate. The tribunal certainly consider it so. Acting in this manner, to violently halt a student and pull him backwards down three stairs is totally unacceptable, and could have caused serious physical injury, not to mention psychological injury to Student T, who is a vulnerable student. The tribunal considers it is conduct which falls well below the standard of conduct expected of a teacher.
Allegation 5: Inappropriate communication with students
[33] Mr Smith has not responded to these allegations.
[34] Both Student J and Student H report that Mr Smith spoke about his sex life and his enjoyment of it in the classroom setting.[12] Student J also reported that he took her into a room off the classroom where he told her that ‘when you first have it, your boyfriend will adore you for it.’[13]
[12] Affidavit of Mark Pollack filed 17 June 2011, p 53, 86 and 143-144.
[13] Affidavit of Mark Pollack filed 17 June 2011, p 86.
[35] The evidence is uncontested and is compelling in it’s similarities concerning Mr Smith’s discussion about his sex life. There is no reason for the tribunal to question the veracity of Student J’s account of the further private conversation and comments to her by Mr Smith.
[36] The tribunal therefore accepts that these events occurred. There is no educational purpose to comments of this kind. Once again, the tribunal considers that this behaviour constitutes behaviour which falls below the standard expected of a teacher.
Allegation 3: Breaching policy
[37] The Catholic Education Code of Conduct includes requirements about maintaining professional relationships with students.[14] This includes a prohibition on discussing matters of a sexual nature relating to themselves or any other person with a student;[15] applying physical force to punish or correct a student unless reasonable and necessary for the protection of any person.[16] Under the code, physical contact with students is acceptable only if reasonable for behaviour support, management and care of a student.[17] Exposing students to material that contains adult concepts or themes inappropriate to their age or the curriculum is unacceptable.[18]
[14] Affidavit of Mark Pollack filed 17 June 2011, 292-299.
[15] Affidavit of Mark Pollack filed 17 June 2011, 295.
[16] Affidavit of Mark Pollack filed 17 June 2011, 296.
[17] Affidavit of Mark Pollack filed 17 June 2011, 297
[18] Affidavit of Mark Pollack filed 17 June 2011, 297.
[38] The QCT Code of Ethics requires that a teacher behave with integrity, dignity, respect and care.
[39] On the basis that the tribunal has accepted allegations 1, 2, 4 and 5, it is satisfied that the teacher has breached these policies.
[40] On the basis of the allegations accepted as demonstrating conduct which fell below what is expected of a teacher, the tribunal is satisfied that the teacher is unsuitable to teach.
What disciplinary action should be taken?
[41] The QCT acknowledges that the purpose of disciplinary action is to protect children and the public. It submits that the behaviour would not be such as to warrant cancellation if the teacher was at this stage an approved teacher. By inference, it does not appear to consider that any period of prohibition from reapplication for registration is warranted.
[42] However, it suggests that a notation should be made on the register to the effect that if the teacher reapplies for registration, a psychologist’s report should accompany the application which addresses a variety of matters arising from the allegations which have been accepted by the tribunal. In this regard, it referred the tribunal to previous decisions including, QCT v Jones [2010] QCAT 543 where a teacher was found to have made inappropriate comments with sexual overtones to a student and ignored directions from the school to desist. The tribunal in that case cancelled the teacher’s registration, prohibited reapplication for 12 months and imposed conditions on future application.
[43] The tribunal accepts that a period of prohibition from reapplication for registration is unwarranted given the particular behaviour of the teacher. However, the unacceptable behaviours must be addressed. The tribunal considers that a notation should be made on the register requiring a psychologist’s report to accompany any application for re-registration addressing Mr Smith’s understanding of the following matters:
a.Actively determining and implementing professional boundaries with individual students, specifically:
i.when it is appropriate and when it is not appropriate for a teacher to touch a student;
ii.awareness of and sensitivity to students’ personal space;
b.Knowledge of and sensitivity to the needs of vulnerable children;
c.Anger management techniques;
d.Knowledge of what constitutes appropriate communication, including electronic communication, with children;
e.The extent and nature of the student, colleague, parental and community trust inherently invested in a teacher;
i.Including the trust and power granted to a teacher;
f.The importance of full adherence to the QCT Code of Ethics;
g.An indication whether or not the psychologist is satisfied that the Mr Smith has adequately understood and addressed the above points; and
h.Confirmation that the psychologist was provided with copies of this decision and the amended section 97 referral.
[44] The tribunal makes orders in these terms.
Non-publication order
[45] The QCT previously sought a non-publication order in this proceeding pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). An order was made on 12 August 2011 in these terms, ‘That to protect the identity of the complainant children, the names, addresses, school of the complainant children be subject of the non-publication order under s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009.’
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