Queensland College Teachers v Teacher ABC
[2012] QCAT 56
•10 February 2012 AMENDED
| CITATION: | Queensland College of Teachers v Teacher ABC [2012] QCAT 56 | |
| PARTIES: | Queensland College of Teachers | |
| v | ||
| Teacher ABC | ||
| APPLICATION NUMBER: | OCR216-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member Elizabeth Benson-Stott, Member Robyn Oliver, Member |
| DELIVERED ON: | 10 February 2012 AMENDED |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Publication of Teacher ABC’s name and the names, addresses and schools of the students referred to in this disciplinary proceeding is prohibited. 2. Under s 161(2)(c) of the Education (Queensland College of Teachers) Act 2005, Teacher ABC is prohibited from reapplying for registration as a teacher for a period of four years commencing 1 April 2009. 3. Under s 161(2)(d) of the Education (Queensland College of Teachers) Act 2005, the following notation be included in the register of approved teachers: a) Should, after the expiry of the prohibition period, Teacher ABC reapply for registration as a teacher, it is recommended that such application includes a psychological report addressing the following: i) Awareness of appropriative manner and forms of communication with students. ii) Awareness of the power imbalance inherent in the teacher/student relationship both during the school years and in the early years following graduation including how that power imbalance can influence relationships with students and former students. iii) An in-depth examination of the extent and nature of the student, colleague, parent and community trust inherently invested in a teacher. iv) Awareness of the power and trust granted to a teacher. v) Awareness of behaviour which may compromise the professional standing of a teacher and the profession of teaching. vi) Understanding of, and full adherence to, the Queensland College of Teachers Code of Ethics. b) Any psychological report referred to in paragraph a) above should include a reference to the report writer being provided with copies of: i) The agreed facts and circumstances. ii) This decision. |
| CATCHWORDS: | TEACHERS – suitability to teach – where teacher sent many private texts to student – where teacher entered into sexual relationship with student shortly after she left school NON-PUBLICATION – where teacher’s son suffering behavioural problems – where necessary to avoid endangering the physical or mental health or safety of a person Education (Queensland College of Teachers) Act 2005, ss 12(3)(a) and (b), 92(1)(h),158(1), 161(2) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The teacher in these proceedings, Teacher ABC is a former approved teacher whose registration certificate expired on 1 April 2009.
He was first registered to teach in Queensland on 1 August 1990 and at the time of this hearing was 45 years old.
In April 2008, the Queensland College of Teachers (“QCT”) received information from the Director, Workforce Standards and Performance Unit, Department of Education, Training and the Arts notifying QCT about an investigation.
QCT authorised an investigation into a disciplinary matter and on 5 October 2011 the Professional Practice and Conduct Committee referred the matter to QCAT under section 115(1) (b) of the Education (Queensland College of Teachers) Act 2005. The particulars of the application are that, Teacher ABC, whilst a teacher:
a) In 2001 and 2002, failed to maintain professional detachment with student A by communicating by letters which were personal and without a valid educational context.
b) On 10 July 2001, the teacher received a caution from the relevant Director in relation to the conduct above.
c) In 2006, failed to maintain professional detachment with student B by exchanging text messages which were personal and without a valid educational context.
d) In 2006, failed to maintain professional detachment with student C by exchanging text messages which were personal and without a valid educational context.
e) On an unknown date in 2006, engaged in a sexual relationship with former student C.
The Evidence
The parties have agreed that a ground for disciplinary action alleging that Teacher ABC is not suitable to teach within the meaning of s 92(1)(h) of the Education (Queensland College of Teachers) Act2005 is established. The agreed facts as to Teacher ABC’s conduct are:
a) Between 2000 and 2006, the teacher failed to maintain professional conduct with three students by exchanging personal letters, text messages and phone calls. In 2007, he engaged in a sexual relationship with one of his former students.
b) In 2001/2, he sent, and continued to send, letters to a Year 9/10 student despite parental intervention. The parent formalised the complaint and the teacher received a caution from the employing authority.
c) In 2006, over a four month period, the teacher sent over 1200 text messages to a Year 10 student. The communication was personal and spanned all hours of the day and night.
d) During substantially the same period, the teacher also sent over 30 text messages/phone calls to a Year 12 student. The special nature of the relationship between the teacher and this student is reflected by the student sending the teacher pictures of the dress she intended to wear to the formal and gifting framed pictures of her at the formal.
e) The teacher maintained contact with the Year 12 student after she finished school. They exchanged text messages and regularly met for lunch.
f) In January 2007, the teacher and the former Year 12 student commenced a sexual relationship of about two months duration.
The tribunal is satisfied that, pursuant to section 12(3)(a) of the Act, Teacher ABC has behaved in a way that does not satisfy a standard of behaviour generally expected of a teacher. The tribunal is further satisfied that, prima facie, Teacher ABC is “not suitable to teach” within the meaning of section 92(1)(h) of the Act and that grounds for disciplinary action pursuant to section 161 of the Act exist within the meaning of section 158(1) of the Act.
Penalty
The parties have agreed that the appropriate penalty should be four years disqualification on these grounds:
a) QCT has a clear interest in the maintenance of professional boundaries. The communication in each case was personal, excessive, lengthy and persistent.
b) In each case, the teacher ignored an acknowledgement of his concerning behaviour through an intervention or a previous caution.
c) Any conduct which involves taking improper advantage of the power imbalance inherent in the teacher/student relationship is conduct that is likely to be harmful or improper. A sexual relationship with a former student, that is proximate to the professional relationship, will “attract particular scrutiny”.
d) The existence of a special relationship with the student while was at school, the continuing contact and the proximity of the sexual relationship to the professional relationship show a clear inference that a power imbalance existed in the relationship.
Despite these matters of aggravation, QCT has acknowledged the teacher’s cooperation with the disciplinary process. He surrendered his registration as a result of these matters and has made admissions which constitute the primary evidence in this proceeding.
QCT referred the tribunal to:
a) Queensland College of Teachers v Grisedale[1] (five years). A 31-year-old teacher co-habited with and engaged in a sexual relationship of one month’s duration with a 17-year-old former student within one week of graduation. They engaged in romantic conduct while the student was at school and the teacher ignored advice to desist.
b) Queensland College of Teachers v Walters[2] (five years). A 48-year-old teacher engaged in a romantic relationship with a student. There was sexual conduct while the student was at school and sexual intercourse one month after the student finished school.
c) Queensland College of Teachers v Borchardt[3] (four years). A 52-year-old teacher engaged in inappropriate comments and touching of three students. He engaged in a sexual relationship with a 17-year-old former student nine months after the student finished school.
d) Queensland College of Teachers v Derbyshire[4] (three years). A 26-year-old inexperienced teacher engaged in a sexual relationship with a 17-year-old former student within three months of the professional relationship. He cooperated extensively with the disciplinary process.
[1] [2011] QCAT 539.
[2] OCR152-10.
[3] [2010] QCAT 432.
[4] [2011] QCAT 536.
It is evident in the matters before the tribunal that there is some confusion within the profession about the appropriateness of private communication between a student and a teacher. As here, QCT often makes submissions about taking improper advantage of the power imbalance inherent in the teacher/student relationship but there appears to be very little guidance for teachers, particularly in relation to texting and emails; specifically communication which is rapid, often conducted in a series and is exclusive to one student. Although we acknowledge the contents of s 2.2.2(b) of the Code of Ethics, it would be of benefit to the profession as a whole if QCT could provide some definitive rules around this issue.
We consider the communication between this teacher and his students was inappropriate and, as QCT has submitted, he did take improper advantage of the power imbalance between the teacher and student:
a) The communications were voluminous.
b) The teacher was not communicating in a similar way with every student within his program.
c) The communications were about matters personal to the student. Section 2.2.2(b) of the Code of Ethics makes it clear that communication with a student should be for official purposes only. It is never appropriate for a teacher to communicate with a student about boyfriends or girlfriends, conditions at home or a student’s social life.
There also appears to be an assumption within the profession that a relationship with a former student is permissible, so long as the relationship did not “start” while the student was still at school. QCT correctly refers to previous comments from the tribunal that it is a matter of degree.[5] For example, regular lunch dates with a former student might have a perfectly innocent explanation, depending on the context of the relationship that existed at school. Whether that issue is appropriately identified and explained by s 2.2.2(a) the Code of Conduct is not clear to us.
[5] Queensland College of Teachers v A Teacher [2011] QCAT 225 at [26].
We accept there is evidence that Teacher ABC enjoyed a special relationship with the student while she was at school. The student didn’t want to give evidence or participate in the investigation so we do not know whether she was 18 at the time of the sexual relationship or whether, in her view, the sexual relationship was sufficiently removed from the teacher/student relationship.
However, the teacher has admitted that his relationship with the former student, so close to her leaving school, was inappropriate. In those circumstances, we agree with the parties’ submissions that the conduct of Teacher ABC, in forming a sexual relationship, demonstrates he took improper advantage of his position as a teacher.
Teacher ABC’s failure to stop the inappropriate communication with students after a warning and an official caution would ordinarily attract a very severe penalty however we accept and adopt QCT’s submission that the period of disqualification should be discounted in light of the teacher’s cooperation.
The complaint was first referred to QCT in 2008. Teacher ABC provided a response in October 2008 and surrendered his registration in April 2009. It has taken QCT three years to file the current proceedings and we can see no explanation for the delay on the file. We see no reason why Teacher ABC should be additionally penalised by the delay in these proceedings. QCT has properly submitted that the date from which the disqualification should commence is the date the teacher surrendered his registration.
Non-publication
The parties have also agreed that the tribunal should issue a non-publication order. The tribunal has power under s 66(b) of the Queensland Civil and Administrative Tribunal Act2009 to make a non-publication order to avoid endangering the physical or mental health of a person.
The tribunal has received material that shows the teacher’s son has been affected adversely by a number of events that have occurred during his early adolescence, all of which were outside his control. The son has already exhibited troubling responses to those events.
The teacher and his son live in regional Queensland. The teacher is well-known within the community and publication of this decision will inevitably have an effect on his son. In particular, the teacher is concerned that his son will be bullied if this decision is published. They are valid concerns and, for this reason, we have determined that a non-publication order is necessary to protect the mental health of the teacher’s son.
We are less concerned by arguments that various relatives of the teacher are also members of the teaching profession and that publication of this decision will be devastating to them. Disappointment is different from, and less serious than, a risk to a young person’s mental health.
Conclusion
The orders of the tribunal are:
a)Publication of Teacher ABC’s name and the names, addresses and schools of the students referred to in this disciplinary proceeding is prohibited.
b)Under s 161(2)(c) of the Education (Queensland College of Teachers) Act 2005, Teacher ABC is prohibited from reapplying for registration as a teacher for a period of four years commencing 1 April 2009.
c)Under s 161(2)(d) of the Education (Queensland College of Teachers) Act 2005, the following notation be included in the register of approved teachers:
i) Should, after the expiry of the prohibition period, Teacher ABC reapply for registration as a teacher, it is recommended that such application includes a psychological report addressing the following:
(1)Awareness of appropriative manner and forms of communication with students.
(2)Awareness of the power imbalance inherent in the teacher/student relationship both during the school years and in the early years following graduation including how that power imbalance can influence relationships with students and former students.
(3)An in-depth examination of the extent and nature of the student, colleague, parent and community trust inherently invested in a teacher.
(4)Awareness of the power and trust granted to a teacher.
(5)Awareness of behaviour which may compromise the professional standing of a teacher and the profession of teaching.
(6)Understanding of, and full adherence to, the Queensland College of Teachers Code of Ethics.
ii) Any psychological report referred to in paragraph i) above should include a reference to the report writer being provided with copies of:
(1)The agreed facts and circumstances.
(2)This decision.
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