Queensland College of Teachers v Teacher QKE
[2013] QCAT 548
| CITATION: | Queensland College of Teachers v Teacher QKE [2013] QCAT 548 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Teacher QKE (Respondent) |
| APPLICATION NUMBER: | OCR048-13 |
| MATTER TYPE: | Occupation regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Joanne Browne, Presiding Member Murray Green, Member Stuart MacDonald, Member |
| DELIVERED ON: | 11 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The teacher’s registration is cancelled and he is prohibited from reapplying for registration or permission to teach as a teacher for a period of two (2) years effective from the date of this decision. 2. The register be endorsed with a notation that should the teacher reapply for registration as a teacher after the expiry of the prohibition period, the application for re-registration must be accompanied by a detailed and independent psychologist’s report addressing the following: a. the teacher’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 and full adherence to the Queensland College of Teachers Code of Ethics. 3. The psychologist’s report to include: a. an indication from the psychologist about whether the psychologist is satisfied that the teacher has adequately understood and addressed the above points. b. reference to the psychologist being provided with copies of: i. the Queensland Civil and Administrative Tribunal disciplinary decision; ii. the statement of agreed matters. 4. Publication of the names of the female student and the respondent teacher referred to in these proceedings is prohibited. 5. Publication of the names of the school where the respondent teacher taught and the female student attended as a student is prohibited. |
| CATCHWORDS: | TEACHER – suitability to teach – where unwelcome and inappropriate text messages sent to female student from another school – where no position of trust in a professional capacity – where teacher was teaching at time of the conduct – where teacher made a full admission to the allegations NON-PUBLICATION ORDER – where contrary to the public interest to identify names of teacher and female student – where no public interest to disclose names of school of female student and teacher Education (Queensland College of Teachers) Act 2005 ss 3, 12(3), 12A, 92(1)(h), 160(2)(d) Queensland College of Teachers v Banyai [2013] 180, cited Queensland College of Teachers v Teacher CAP [2011] QCAT 541, cited |
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 (QCAT Act).
REASONS FOR DECISION
Teacher QKE is 40 years of age and has been registered as a teacher for approximately 18 years. In 2012 he was teaching at a Catholic Boys’ College based in Queensland having commenced teaching at the school in early 2010. Teacher QKE’s main teaching area is industrial design and technology. He is also a junior science teacher.
On 20 May 2012 Teacher QKE resigned from his position as a teacher following the finalisation of an investigation concerning his conduct towards a 16 year old female who was a student attending another teaching college.
Teacher QKE never taught nor was he professionally involved with educating the female student. He came into contact with her in about 2004 as she was the daughter of a family friend.[1]
[1]Interview transcript with [the female student’s mother] dated 19 September 2012, p 168 QCT investigation report, exhibit “C” to the affidavit of Jonathan Stuart Gormley filed 20 February 2013.
Teacher QKE admitted to 2 allegations concerning conduct by him between 9 December 2011 and 24 January 2012; and between 31 January 2012 and 27 April 2012. Teacher QKE admitted to communicating with the female student through text messages; and that he, on one occasion, unnecessarily touched the female student’s leg. Teacher QKE was aged 38 years at the time of the conduct.
The text messages sent by Teacher QKE were inappropriate because they were unwelcome and sexual in nature. One of the text messages contained a photographic image of Teacher QKE from the neck down in his underwear and on another occasion Teacher QKE sent a message with a photographic image which showed him naked under a blanket with “an exposed penis”[2] and an attached written text stating: “I’m hard and I want you”.[3] Teacher QKE also sent a text message to the female student suggesting “they should get a room together” at a hotel.[4]
[2] Ibid, interview transcript with Teacher QKE dated 3 October 2012, p 116.
[3]QCT referral of disciplinary matter under s 97 of the Education (Queensland College of Teachers) Act 2005, p 3.
[4] Ibid 3.
Teacher QKE was, on one occasion, responsible for the female student along with her brothers and Teacher QKE’s own sons during an excursion to the movies. The information before the Tribunal suggests that the conduct commenced at (and continued from) the date of the excursion in early December 2011.
On 24 February 2012 the female student reported the text messages to a teacher at her school, her Year Level Co-ordinator. A text message was sent to Teacher QKE by the female student, at the request of her Year Level Co-ordinator on 29 February 2012 indicating that he should cease contacting her.[5] Teacher QKE continued to send text messages to the female student until late April 2012.
[5]QCT investigation report, p 11, exhibit “C” to the affidavit of Jonathan Stuart Gormley filed 20 February 2013.
The text messages came to the attention of the Catholic Boys’ College on 14 May 2012 and disciplinary interviews took place with Teacher QKE and the Principal of the College on 17 May 2012 and 20 May 2012.
The allegations concerning Teacher QKE’s conduct were reported to the QCT by the College on 25 May 2012. Following a disciplinary investigation, the QCT referred the matter to the Tribunal to determine what disciplinary action should be taken on the basis that Teacher QKE is not suitable to teach.[6]
[6] Education (Queensland College of Teachers) Act 2005 s 92(1)(h).
Is Teacher QKE unsuitable to teach?
In relation to allegation 1, the communication through text messaging took place over 6 weeks from early December 2011 to late January 2012. There was also unsolicited and unwelcome conduct by Teacher QKE during an excursion to the movies in early December 2011. Teacher QKE unnecessarily touched the female student’s leg. Teacher QKE, after attending the movies and while at the female’s student’s home, offered to rub moisturing cream onto her hip area.
The nature of the text message communication is sexual in nature and two of the messages attached photographic images of Teacher QKE in his underwear and another image showed him naked under a blanket with his penis exposed.[7]
[7]QCT referral of disciplinary matter under s 97 of the Education (Queensland College of Teachers) Act 2005, p 3.
Teacher QKE sent text messages to the female student stating to the effect that: “her legs looked good in short pants”.[8] He also messaged the female student after asking if a particular boy was her boyfriend stating to the effect that: “the boy would have to wait in line to have sex with her”.[9]
[8]Ibid 2.
[9] Ibid 2.
In relation to allegation 2, the communication took place over 8 weeks throughout the months of February 2012 and the April 2012. The text messages were unwelcome and Teacher QKE continued to send messages after the female student indicated to him that the messages should stop.
The female student sent a text message to Teacher QKE on 31 January 2012 stating: “We gotta [sic] stop talking it’s getting inappropriate if Dad finds out he will kill us”.[10] The female student also sent a text message requesting that Teacher QKE “stop” messaging her on 3 February 2012 and again on 29 February 2012 when she requested he “cease communication”.[11] The female student’s mother also “intervened” by indicating to Teacher QKE in late January 2012, that it was more appropriate for him to “talk to [her]”.[12]
[10]Ibid 3.
[11] Ibid 4.
[12]Interview transcript with [the female student’s mother] dated 19 September 2012, p 164 QCT investigation report, exhibit “C” to the affidavit of Jonathan Stuart Gormley filed 20 February 2013.
The nature of the text messages sent by Teacher QKE are overly familiar and some of the messages were sent during school hours. Teacher QKE encouraged the female student to respond to his text messages. He sent messages throughout the month of February 2012 stating: “I miss talking” and “I [am] still here always”.[13] Teacher QKE also sent a message on 27 April 2012 after the female student’s mother requested on 20 April 2012 that he cease communication. The message sent by Teacher QKE stated: “I know your probably not going to reply, but am up for a catch up til late tonight. Say hi if you want”.[14]
[13]QCT referral of disciplinary matter under s 97 of the Education (Queensland College of Teachers) Act 2005 p 4.
[14] Ibid 6.
The Tribunal agrees with the written submissions of the QCT that Teacher QKE’s conduct demonstrates a failure to recognise “appropriate boundaries” with children.[15] Teacher QKE also agrees that his conduct does not satisfy a standard of behaviour generally expected of teachers.[16]
[15] Submissions of the QCT filed 12 April 2013, p 8.
[16] Submissions of the respondent filed 3 May 2013, p 1.
Teacher QKE was not the female student’s teacher at the time of the conduct but was in a position of trust in that he was known to the female student as a family friend. Teacher QKE has communicated with the female student in an inappropriate and unwelcome manner by sending messages, including photographic images of himself that were sexual in nature.
It was previously determined by the Tribunal in the decision of Queensland College of Teachers v Teacher CAP[17], that the behaviour of a teacher towards a child in regards to private conduct is relevant to professional standards and responsibilities. The Tribunal stated:
…the manner in which a teacher behaves with and towards a child in the sphere of private and family life is relevant to the professional standards and responsibilities of a teacher.[18]
[17] [2011] QCAT 541.
[18]Queensland College of Teachers v Teacher CAP [2011] QCAT 541, [20].
The Tribunal is satisfied that Teacher QKE’s conduct for allegations 1 and 2 demonstrates a failure to meet the standard of behaviour generally expected of a teacher and a failure to uphold the standards of the teaching profession.[19]
[19] Education (Queensland College of Teachers) Act 2005 s 12(3)(a).
Is the proposed disciplinary action appropriate in the circumstances?
The QCT and Teacher QKE have prepared written submissions and together with the agreed facts propose certain disciplinary action be taken by the Tribunal. The QCT submits that Teacher QKE’s teacher registration be cancelled and that he be prohibited from reapplying for registration as a teacher for a period of 2 years and 6 months with certain conditions to be noted in the register.[20] Teacher QKE submits that the period of cancellation of his teacher registration should be 18 months on the basis that there are relevant mitigating factors before the Tribunal.
[20] Statement of agreed facts filed 12 April 2013.
The Tribunal in determining the appropriate action to be taken must balance the “general and specific deterrence” factors such as the seriousness of the conduct, whether the teacher has cooperated in relation to the investigations and whether the teacher has demonstrated insight into his conduct. [21] Disciplinary action is to be taken in the interests of protection of children and the community and is not punitive in nature.[22]
[21] Queensland College of Teachers v Genge [2011] QCAT 163.
[22] Queensland College of Teachers v Banyai [2013] 180, [21].
There is material before the Tribunal to indicate that Teacher QKE has been attending sessions with a psychologist since January 2012 for issues relating to depression, anxiety and stress. The psychologist report included in the material filed by Teacher QKE refers to marital conflict and distress. The psychological treatment provided to Teacher QKE included sessions to address issues of boundaries and inappropriate contact with children. The report states “[Teacher QKE] admitted that his boundaries regarding helping others and showing concern became blurred with sexual inappropriateness with the person in question”.[23]
[23] Submissions of the respondent filed 3 May 2013.
The Tribunal accepts Teacher QKE’s submission that he was experiencing mental health issues at the time of the conduct and that he commenced psychological treatment in early January 2012. There is no information before the Tribunal to indicate that this was, in so far as the allegations are concerned, an isolated event. In the absence of any material to indicate that there is evidence of prior conduct relevant to sanction, the Tribunal will proceed on the basis that this was an isolated event.
The Tribunal in determining the appropriate sanction in all of the circumstances has considered the written submissions filed and earlier decisions of this Tribunal.
The decision of Queensland College of Teachers v Stark[24] involved inappropriate communication through text messages with students and the teacher encouraged students not to tell others about the conduct. The Tribunal was not satisfied that the teacher understood the inappropriate nature of his conduct and ordered the teacher’s registration be cancelled for 4 years.
[24] [2010] QCAT 592.
The decision of Queensland College of Teachers v DRR[25] involved inappropriate communication through text messages with a former student. The communication was sexual in nature and one text message contained an attached photograph of the teacher’s erect penis. The former student did initially provide her mobile phone number to the teacher, however, the Tribunal found that she was vulnerable and lonely due to her personal family circumstances. The Tribunal ordered that the teacher’s registration be cancelled for 30 months.
[25] [2012] QCAT 671.
The decision of Queensland College of Teachers v Banyai[26] involved inappropriate Facebook communication with former students. One of the former students of the teacher initiated the conversations and the teacher did not discourage the use of inappropriate words. The communication by the teacher was sexual in nature and on one occasion the teacher indicated that he wanted sex and provided his mobile phone number to one of the former students. The teacher also agreed to give one of the former students $500 asking the student what he would get in return. The Tribunal noted that there was no material before it to indicate that the teacher had undertaken counselling or further courses by way of professional development in relation to the conduct. The Tribunal ordered that the teacher’s registration be cancelled for 12 months.
[26] [2013] QCAT 180.
Teacher QKE’s conduct can be distinguished from the decision in Queensland College of Teachers vDRR because there is evidence before the Tribunal of insight into the conduct in that Teacher QKE has undertaken counselling with a psychologist. Teacher QKE has also made a full admission to the allegations and has cooperated with the investigations undertaken by Teacher QKE’s teaching College and the QCT.
The Tribunal is satisfied having considered all of the circumstances that cancellation of Teacher QKE’s registration for a period of 2 years with conditions to be noted on the QCT register is appropriate and that this period of cancellation is within the range of earlier decisions of the Tribunal.
The appropriate order is that Teacher QKE’s registration is cancelled effective from the date of this decision with conditions as proposed to be entered on the register.
Non-publication order
The Tribunal has the power under section 66 of the QCAT Act to prohibit the publication of information that might enable a person or people such as the female student, Teacher QKE’s children and witnesses who have been interviewed in relation to the disciplinary investigations to be identified in circumstances where it would not be in the interests of justice to identify their names.
The female student was of school age at the time the allegations were made. She was not a student of Teacher QKE and the conduct concerning Teacher QKE took place outside his professional capacity as a teacher. However, Teacher QKE was known to the female student as a family friend and some of the text message communication was made during school hours. One of the allegations concerning Teacher QKE and the female student involved conduct that took place while the female student together with her siblings and Teacher QKE’s children were in his care.
There is no public interest served by disclosing the names of the female student and Teacher QKE in circumstances where disclosure of their names would identify the female student, her siblings and Teacher QKE’s children. There is also no public interest served by disclosing the names of the school where Teacher QKE taught and the school where the female student was in attendance at the time the conduct took place.
The Tribunal therefore prohibits the publication of the names of the female student, the teacher (Teacher QKE) and the names of the school where Teacher QKE taught and the female student’s school.
7
5
0