Victorian Institute of Teaching v Anthony O'Byrne
[2017] VSCA 43
•9 March 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0113
| VICTORIAN INSTITUTE OF TEACHING | Applicant |
| v | |
| ANTHONY O’BYRNE | Respondent |
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| JUDGES: | KYROU and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 October 2016 |
| DATE OF JUDGMENT: | 9 March 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 43 |
| JUDGMENT APPEALED FROM: | [2016] VCAT 1093 (Harbison J and Member Harper) |
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EDUCATION – Teachers – ‘Misconduct’ – Complaint made against teacher – Failure of principal to communicate clearly and inform complainant of outcome of investigation did not amount to ‘misconduct’.
STATUTES – Interpretation – Meaning of ‘misconduct’ under Education and Training Reform Act 2006 – Conduct of ‘a lesser standard than a member of the public or members of the teaching profession are entitled to expect from a reasonably proficient teacher’ – To be assessed by the standard of an informed member of the public and informed members of the teaching profession – ‘Misconduct’ involves unacceptable, improper or blameworthy behaviour that warrants admonition – Education and Training Reform Act 2006 s 2.6.1 – Parr v Nurses Board of Victoria (1998) 16 VAR 118; Vissenga v Medical Practitioners Board of Victoria (2004) VCAT 1044; Pillai v Messiter (No 2) (1989) 16 NSWLR 197 referred to.
ADMINISTRATIVE LAW – Appeal on error of law from Victorian Civil and Administrative Tribunal – No error of law established – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the applicant | Dr I Freckelton QC with Mr S McGregor | Victorian Institute of Teaching |
| For the respondent | Mr J Ruskin QC with Ms T Riddell | Gilchrist Connell |
Introduction
Anthony O’Byrne was the principal of Aquinas College in Ringwood. Mr O’Byrne has been accused of misconduct. This proceeding turns on the meaning of ‘misconduct’ under the Education and Training Reform Act 2006 (‘the Act’).
In broad terms, the alleged misconduct concerned how Mr O’Byrne communicated with the parents of a student who complained about the conduct of one of her teachers and how Mr O’Byrne investigated that complaint. This proceeding does not concern whether there was any misconduct on the part of the student’s teacher.
The complaint against Mr O’Byrne was referred to a panel of the Victorian Institute of Teaching (‘the Institute’). The panel found Mr O’Byrne was ‘guilty of misconduct’ and reprimanded him. Mr O’Byrne sought review of that decision by the Victorian Civil Administrative Tribunal (‘the Tribunal’). The Tribunal set aside the panel’s decision.[1] The Institute seeks leave to appeal under s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998. An appeal may only be brought on a question of law.[2] Leave may be granted if the proposed appeal has a real prospect of success[3] in the sense that it is not fanciful.[4]
[1]A Vice President having been one of the members of the Tribunal.
[2]Victorian Civil and Administrative Tribunal Act 1998 s 148(1).
[3]Supreme Court Act 1958 s 14C; Metricon Homes Pty Ltd v Softley [2016] VSCA 60 [68].
[4]Kennedy v Shire of Campaspe [2015] VSCA 47 [13].
For the reasons which follow, we would grant leave to appeal but dismiss the appeal.
The legislative framework
Before considering the facts in more detail, it is useful to consider the statutory framework within which they are to be viewed.
So far as relevant, ‘misconduct’ is defined in the Act to mean:
conduct of the teacher… occurring in connection with the practice of teaching that is of a lesser standard than a member of the public or members of the teaching profession are entitled to expect from a reasonably proficient teacher.[5]
[5]The Act s 2.6.1.
‘Teacher’ is defined to include a person employed as the principal of a school whether or not that person undertakes the duties of a teacher.[6]
[6]The Act s 2.6.1.
One of the Institute’s functions is to investigate the conduct of registered teachers.[7] Among other things, the Institute may inquire into any complaint that provides evidence of the misconduct or serious misconduct of a registered teacher.[8] Serious misconduct is not defined in the Act. The Institute may investigate a matter if the Institute reasonably believes that a teacher has engaged in misconduct, even if no complaint is made about the teacher’s conduct.[9] Once a complaint of misconduct is made, the Institute must investigate it.[10]
[7]The Act s 2.6.3(1)(i).
[8]The Act s 2.6.30(1)(b)(ii).
[9]The Act s 2.6.33A.
[10]The Act s 2.6.33.
Once the Institute’s investigation is complete, the investigator may make a number of recommendations, including recommending that an informal hearing be held into the matter.[11] The Institute must then determine whether to act on the investigator’s recommendation.[12] If it decides to proceed with an informal hearing, then a panel is appointed and notice of the hearing is given to the relevant teacher.[13] At an informal hearing, the teacher is entitled to make submissions, although the teacher may not be represented.[14] Section 2.6.40 provides:
[11]The Act s 2.6.34(1)(e).
[12]The Act s 2.6.34(2).
[13]The Act ss 2.6.36-2.3.38.
[14]The Act s 2.6.39. By contrast, if the matter is referred to a formal hearing, the teacher is entitled to be represented: The Act s 2.6.45(b).
(1)After considering all the submissions made to the hearing, the informal hearing panel may make findings about whether or not—
(a) the teacher has by act or omission engaged in misconduct; or
(b) the matter should be referred to a formal hearing.
(1A)If the panel finds that the teacher has engaged in misconduct, the panel may make one or more of the following determinations—
(a)that the matter be referred to a medical panel hearing, if the panel is of the opinion that the teacher’s ability to practise as a teacher is seriously detrimentally affected or likely to be seriously detrimentally affected because of an impairment;
(b)that the teacher be cautioned;
(c)that the teacher be reprimanded;
(d)that any condition be placed on the teacher’s registration including a condition—
(i)that the teacher undertake and complete specified further education or training within a specified period; or
(ii) that the teacher undergo counselling.
At a formal hearing the panel may make a number of findings, including that the teacher is guilty of misconduct or serious misconduct.[15] The action that the panel may take includes more serious sanctions such as suspension or cancellation of the teacher’s registration.[16] The Institute may publish the findings, reasons and determinations of a formal hearing panel.[17]
[15]The Act s 2.6.46(2)(c).
[16]The Act s 2.6.46(2)(i),(j).
[17]The Act s 2.6.49A.
The Institute must maintain a register of disciplinary action recording disciplinary action taken against a teacher.[18] The exceptions to this requirement include disciplinary action taken as a result of an informal panel hearing determination.[19]
[18]The Act ss 2.6.2.6.54A, 2.6.54C.
[19]The Act s 2.6.54D(a).
With that framework in mind, we set out the facts of the case against Mr O’Byrne in his role as principal.
Complaints against the teacher[20]
[20]The narrative of the facts is substantially taken from the Agreed Summary of Facts filed by the parties and the reasons of the Tribunal.
On 22 October 2012, a female student made a complaint against a teacher at the College (‘the October complaint’). The October complaint was made to a year 11 Co-ordinator at the College. He met with the student. She told him that the male student that she was sitting next to at the time of the incident was her boyfriend. The teacher singled them out and said to them both, ‘I know she would love you to be stroking her leg…’. The female student said that she could not remember the end of the sentence but it was something like ‘now get back to work.’
Her classmates laughed and started making fun of her and her boyfriend. The female student was embarrassed by the comment and by the reaction that it provoked from her classmates.
The Co-ordinator decided to investigate because this was not the first complaint against the teacher for using inappropriate language when speaking to students. On 23 October, the Co-ordinator spoke to the female student and her boyfriend. They identified another student, Georgia Munro, as having been one of the students who mocked them after the teacher’s comments. The Co-ordinator decided to interview Ms Munro and other members of the class.
Ms Munro told the Co-ordinator that the teacher had previously made unwelcome comments to her, that she had told her parents about them but had chosen not to report them to the College.
The Co-ordinator told Mr O’Byrne about the October complaint but not about the complaint that Ms Munro had made to him about the same teacher. Mr O’Byrne decided to investigate the October complaint. On 23 October, he interviewed the students at the centre of the October complaint, Ms Munro (as he had been told of her mocking behaviour) and the teacher. Mr O’Byrne told the teacher that he believed the students and he was disturbed that the teacher had not made an effort to intervene when the affected students were embarrassed by the reactions of the other students.
As part of this investigation, Mr O’Byrne only spoke to Ms Munro and the teacher about the October complaint and did not mention the other complaint that Ms Munro had made to the Co-ordinator. The reason for this was because he did not know about that complaint. His purpose in interviewing Ms Munro was to ascertain whether she had reacted in the manner reported to him. He was particularly concerned that Ms Munro was said to have made loud comments from across the room for, if this was so, it would demonstrate that the teacher had made no attempt to control the class and prevent the embarrassment caused to the student by the mocking behaviour.
Ms Munro assumed that Mr O’Byrne knew about her complaint to the Co-ordinator. She thought that she was being interviewed about that complaint as well as the October complaint. She was upset that Mr O’Byrne did not discuss her complaint against the teacher. She spoke to her parents that evening. The following morning, her father sent an email to the Co-ordinator. The email read:
I am enquiring to clarify the circumstances surrounding Georgia being removed from class and spoken to you by yourself and Tony O’Byrne yesterday.
Georgia told me that it was in relation to comments made by [the teacher] in a class a day or so before that may have been inappropriate towards another female student.
Could you please clarify what information you required from her and if you then asked further questions in relation to [the teacher] continually making inappropriate remarks/comments to Georgia and other female students throughout the year.
I am interested in the process Aquinas is to put in place to investigate the matter further.
I am aware that a friend of Georgia’s has previously raised concerns in relation to [the teacher] earlier this year regarding a similar nature and I am also enquiring what process Aquinas put in place to ensure the inappropriate behaviour by [the teacher] ceased and to ensure that a situation that has since occurred, would not occur again. Georgia has continually told both myself and my wife, Leanne, comments that he makes towards both her and other female students. She has pleaded for us to not get involved as she recognizes that [the teacher] does it to a lot of girls and she was concerned it may impact her results in his class. Georgia has demonstrated great maturity up to date in order to ‘laugh off’ [the teacher] but unfortunately I will no longer have confidence that Aquinas has/is dealing with [the teacher] appropriately.
Comments such as, ‘Do you smoke Georgia? You would not want to wreck a body like that.’ ‘Does Harry help you with your homework? I bet he helps you in other ways.’ Then winks at her. These are just some of the comments.
Could you please tell me if these comments are appropriate? If not, what is Aquinas doing about it. You mentioned to Georgia that [the teacher] will apologize to the class? ls that it? Any concerns to further embarrass students?
At what stage yesterday was Aquinas to contact either myself or Leanne to explain the situation. If after speaking to Georgia that you deemed it not necessary to at least inform the parents of the ongoing issues with [the teacher], please tell me why. Is it not serious or not necessary?
I also have a daughter Zoe, in Year 9 who had [the teacher] in Year 7 and I am aware that Georgia told you he made comments throughout her Year 7 class to her and other female students.
I am aware of all the policies of Aquinas, Catholic Education Office, Victorian Institute of Teaching and legislation surrounding such behaviour of [the teacher].
I am interested to how many students Aquinas will speak to in order to gauge the scope of [the teacher’s] continual inappropriate behaviour.
I understand Georgia did ask to see you, as you asked to see her. Georgia came home concerned that [the teacher] may ‘get in trouble’ as a result of her meeting with you and O’Byrne yesterday. On top of her being stressed regarding upcoming exams, this is the last thing she needs.
From now on, if at any stage you need to speak to Georgia re [the teacher], please contact either myself or Leanne prior so we can reassure her.
I am interested to know why Georgia was spoken to regarding serious breaches by [the teacher] which has clearly impacted many students, and, as parents, we have yet to be notified.
The Co-ordinator forwarded the email to Mr O’Byrne on the day that he received it. This was the first that Mr O’Byrne knew of the complaint by Ms Munro. He was concerned because he had not been aware of any earlier complaint by her. Mr O’Byrne drafted a response to Mr Munro. Through inadvertence, his response was not sent.
On 25 October, the teacher delivered an apology to the class. This was organised by Mr O’Byrne. The apology was drafted by the Co-ordinator and the teacher and supervised by the Co-ordinator at Mr O’Byrne’s request.
On 26 October, Mr O’Byrne realised that the email he had drafted in response to Mr Munro’s email had not been sent. He immediately telephoned Mr Munro. As is to be expected, their accounts of the telephone discussion varied. They both agreed that during the conversation, Mr Munro asked Mr O’Byrne to investigate the matters set out in his email but not to speak to his daughter. Mr Munro’s recollection was that he told Mr O’Byrne not to speak to his daughter until the end of her exams. Mr O’Byrne’s recollection was that Mr Munro told him not to speak to her at all.
The following Monday (29 October), Mr O’Byrne’s secretary sent an email to Mr Munro telling him that the teacher had not been spoken to as he had not been at school that day. On that same day, in light of the additional allegations from Ms Munro, Mr O’Byrne had discussions with some senior Deputy Principals at the College. They agreed that the teacher should be stood down immediately and relieved of his duties in assessing both years 11 and 12. Another teacher was designated to replace him.
Mr O’Byrne considered the suspension a dramatic step but he had no confidence in the teacher because of the October complaint, the complaints preceding that incident, and the matters contained in the email from Mr Munro in respect of his daughter.
This was the first time in 28 years of teaching that Mr O’Byrne had ever stood anyone down. He was uncertain of the process. There is no manual prepared by the Catholic Education Office or any other authority to assist in such a situation, although he was familiar with the Catholic Education Office guidelines in dealing with misconduct allegations against lay employees.
Mr O’Byrne considered there was no other clear assistance available to him, so he accessed the Institute website for some guidance. Mr O’Byrne accepted that the Institute’s website was not produced for that purpose, but in the absence of other guidance, he thought it was appropriate to look at the website to see what sanctions are available to teachers generally and then adapt them to the situation with which he was dealing.
Mr O’Byrne adapted from the website some sanctions that may be imposed on teachers. He incorporated them into a letter to the teacher dated 30 October 2012.
The letter set out disciplinary sanctions and therapeutic processes which were to be imposed on the teacher. Mr O’Byrne required the teacher to have a physical check-up because he had complained of having a hearing problem and that this had contributed to his behaviour. He also required the teacher to obtain psychological and neurological assistance because Mr O’Byrne thought there may be some medical reason which might explain why a teacher of such longstanding good reputation was beginning to speak in such a disinhibited way. The letter outlined other features of the disciplinary action to be taken against the teacher.
The letter referred to both the October complaint and the allegations set out in Mr Munro’s email dated 24 October 2012. In relation to this latter issue, the letter read:
[The College] has also received a letter of concern from a parent whose daughter was involved in the general class hubbub around this incident. This letter indicates that their daughter has also been subject to comments that generated a sense of angst for them around perceived sexual innuendo.
Later in the letter, Mr O’Byrne stated:
Given the first warning of deputy Principal… and the fact that this incident represents an equally serious example of professional misconduct, and that there is a subsequent parental report which carries with it the potential to generate further similar reports, it is necessary that the school undertake a process that is very clear in its intent.
Mr O’Byrne did not discuss the content of his letter in any detail on 30 October 2012 when he handed it to the teacher because he understood that such a discussion would need to be undertaken in the presence of a union representative. Such a meeting was arranged for 2 November 2012.
Before the meeting, Mr O’Byrne sent various materials to Sister Kathleen Tierney, the Professional Standards Officer of the Catholic Education Office, and asked her if she had any further advice for him about procedures. Sister Tierney was satisfied with what Mr O’Byrne provided to her and the direction he was taking.
Mr O’Byrne met with the teacher and the union representative as planned on 2 November. Mr O’Byrne went through the allegations regarding the October complaint, the allegations regarding Ms Munro, and discussed the sanctions. The teacher did not accept all of the allegations, denied making various sexually suggestive comments, and expressed resentment at the Munro family for making allegations against him. The teacher accepted he made some comments of an inappropriate nature to Ms Munro and accepted the imposition of sanctions against him.
The formal letter of suspension, containing the conditions outlined above, was delivered to the teacher and arrangements were made for the teacher to be replaced in his teaching and assessment duties for the rest of the year. Mr O’Byrne was not too concerned about what would happen the next year. He knew that the teacher would be away for the first term for surgery. Consequently, Mr O’Byrne did not expect to have to concern himself with any other issues relating to the teacher’s interaction with students in the near future.
There was then a short delay before Mr O’Byrne contacted Mr Munro. Mr O’Byrne thought that he needed confirmation from the union representative about the wording of his letter to the teacher as one in a chain of warnings which might ultimately lead to the teacher’s removal. Cup week also intervened. On 16 November 2012 Mr O’Byrne wrote to Mr Munro confirming that the complaint was being investigated. His letter read:
I write to follow up our conversation and also your email to the College of some weeks ago.
For your information in dealing with the matter the College is following the process of the Victorian Institute of Teaching in relation to Complaints against Registered Teachers. The actions that the school is taking are consisted [sic] with the VIT process. For your information the Professional Standards Officer at the Catholic Education Office Melbourne, Mercy Sister, Sr Kathleen Tierney has been informed of the processes being followed by the College.
I expect outcomes from the process with be consistent with information that can be obtained by reading the relevant section of the VIT website in relation to conduct and complaints against registered teachers.
Mr Munro did not respond to that letter. However, on 11 December 2012 he emailed Mr O’Byrne, enquiring as to the stage that the investigation had reached and whether the teacher had been spoken to about his daughter’s allegations. At this time, Mr O’Byrne was dealing with another very serious matter. A student had died on a school camp some time before. The inquest into that student’s death took place from 11 to 14 December 2012. Mr O’Byrne gave evidence at the inquest. He also counselled and supported students and former students who were called to give evidence at the inquest. At the end of the week, the inquest was adjourned. This added to the trauma and to the suffering of prospective witnesses and staff.
Mr O’Byrne responded to Mr Munro’s email of 11 December by letter dated 17 December 2012. The letter read:
Further to your request.
In relation to your question the particular comments around which you were concerned were stated as they were stated in the email you sent [the Co-Ordinator]. Given the presence of a third party to these discussions it was agreed that given there were no specifics around them the question would not be responded to directly. However, in generating the process that was consistent with the VIT standards, which I mentioned previously, the comments were not contested as such.
I trust this is of assistance.
When he received the letter, Mr Munro asked for a meeting with Mr O’Byrne. Mr O’Byrne agreed and suggested the meeting take place the following day. A mutually convenient time could not be found and no meeting took place.
Mr Munro sent another email to Mr O’Byrne on 18 December 2012. That was the last day of the school year. It was a harried day for Mr O’Byrne. He had been at the inquest the week before, he had arranged to travel interstate at lunchtime and he had little time to finalise all school issues before the end of the year. Mr Munro posed the following questions in his email:
Did you forward a precis of my initial email to Sister Kathleen?
When did you speak to [the teacher] in relation to Georgia?
Did [the teacher] confirm what he said to Georgia as mentioned in my email to [the Co-ordinator]?
When were you to notify myself or Leanne of the outcome?
Did you notify Sister Kathleen regarding [the teacher’s] comments to other students?
Is [the teacher’s] behaviour sexual harassment as per Sexual Discrimination Act? (Particular attention to ‘Education Clause’)
When do you need to speak to Georgia? Or class members to corroborate extent of comments?
In relation to Professional Conduct and Sexual Harassment that [the teacher] has alleged to have committed, has the College finalized its investigation?
If so, please notify myself or Leanne.
If not, please confirm Sister Kathleen is the contact person.
Mr Munro went on to say that if Mr O’Byrne required further clarification, he could be contacted on his mobile telephone any time. He also stated that he was available to meet Mr O’Byrne that day if required. Mr Munro concluded his email with ‘I expect answers to these questions today.’
Mr O’Byrne responded to say that he would not be able to meet during the time when Mr Munro was available. Mr O’Byrne said that he would prepare a formal response to Mr Munro’s questions. Later on 18 December, Mr O’Byrne’s letter was sent to Mr Munro. It read as follows:
The College has completed its investigation into the concerns raised regarding [the teacher]. As I indicated in my communication of 16 November, the College followed the process that is outlined in the Victorian Institute of Teaching Protocols around complaints against registered teachers.
As I further indicated to you in my communication of 17 December concerns that you raised with me in relation to inappropriate comments made by [the teacher] to Georgia formed part of the investigation associated with the complaint process. The actions taken in regards to [the teacher] that stemmed from these considerations were consistent with those outlined in the VIT standards.
It is not my view that the matters came under the province of sexual harassment as per the Sex Discrimination Act but rather bear on the professional standards and conduct expected of teachers and the right of students to a psychologically safe classroom environment.
Sr Kathleen Tierney is the Professional Standards Officer at the Catholic Education Office and she was kept informed of the process.
Following your email of Wednesday October 24 and our extended conversation on Friday October 26 matters were taken up with [the teacher], in the pattern that I have indicated, on the following Monday. As a consequence of that conversation in which the matters regarding Georgia’s concerns and others were raised, the process according to VIT Protocols was put in place.
At this stage it is not my intention to revisit these matters through further follow up with Georgia or other students. The matter was raised by you and others and acted upon as a matter of required urgency at the time in a manner consistent with the VIT processes.
Given that I believe the College has acted appropriately in this matter and followed sound practice as outlined by the VIT, I believe you need to take any further concerns around this matter to Sr Kathleen Tierney in her role as Professional Standards Officer at the Catholic Education Office Melbourne.
Mr O’Byrne had difficulty writing this letter. He had severe time constraints on him because it was the last day of term, he had been busy in the lead up and he was leaving at lunchtime. He was also concerned about what he should do to keep the Munros informed of the investigation process and the outcome which he felt conflicted with the school’s legal and ethical obligations to the students who had made the October complaint and to staff. He thought that there was an obligation on the College to ensure the privacy of the students and to provide the teacher with a level of fairness and natural justice when investigating the allegations and, therefore, that he should not divulge the details of the disciplinary action taken against the teacher.
There were no clear guidelines available to Mr O’Byrne from a privacy viewpoint as to how to deal with the complaint made by Ms Munro nor as to what process should be followed in relation to reporting the outcome of an investigation into a complaint.
Complaint to the Victorian Institute of Teaching and the Informal Hearing
In March 2013, Mr Munro made a complaint against Mr O’Byrne to the Institute. The matter was referred to the Disciplinary Proceedings Committee of the Institute and the Committee decided to refer the matter to an investigation. On 22 January 2014, the Committee considered the investigator’s report and decided to refer the matter to an informal hearing before a panel. That hearing took place on 15 April 2014 to consider ‘whether by act or omission’ Mr O’Byrne had engaged in misconduct or if the matter should be referred to a formal hearing.
The allegations of misconduct were described in the Notice of Hearing as follows:
Whilst employed as the Principal of Aquinas College, Ringwood, Mr Anthony O’Byrne failed to maintain a professional relationship with parents in circumstances where he did not communicate and consult with parents of Year 11 student Georgia Munro in a timely, understandable and sensitive manner in relation to allegations she raised against [the] registered teacher … on 23 October 2012 including not:
1. notifying Mr and Mrs Munro of the allegations raised by Georgia in the first instance;
2.adequately advising Mr and Mrs Munro of the nature and process of the investigation into the allegations raised by Georgia; and
3. adequately investigating the allegations raised by Georgia against [the teacher] including not:
i.interviewing Georgia with respect to the allegations; and
ii. adequately responding to Mr Munro’s emails dated 24 October 2012 and 18 December 2012; and
4.advising and explaining to Mr Munro, as the complainant in the matter, the outcome of his investigation into these allegations against [the teacher].
On 26 June 2014, the panel found that the allegations had been made out, such that Mr O’Byrne was ‘guilty of misconduct’. The panel determined not to refer the matter to a formal hearing but to reprimand Mr O’Byrne.
Mr O’Byrne applied to the Tribunal for review of the panel’s determination.[21] That hearing was a hearing de novo.
The Tribunal’s reasons[22]
[21]The Act s 2.6.55(1)(d)(ii).
[22]O’Byrne v Victorian Institute of Teaching [2016] VCAT 1093 (‘Reasons’).
Having set out the relevant factual findings, the Tribunal considered the proper interpretation of ‘misconduct’ under the Act. The Tribunal observed that the Act contains a very open-ended definition and said:
Our view is that this must be the standard of a well-informed member of the public or a well-informed teacher — someone who understands all of the issues confronting the Principal. It must be informed by common sense and a consideration of the practical exigencies of the role of Principal.[23]
[23]Reasons [144].
The Tribunal’s view was that it was necessary to look at the whole of the conduct of Mr O’Byrne in respect of the complaint by Ms Munro in deciding whether his conduct should be characterised as misconduct rather than looking at the four aspects of it which were relied upon by the Institute.[24] The Tribunal was critical of Mr O’Byrne’s correspondence and his failure to clarify in writing his understanding that Ms Munro was not to be interviewed. The Tribunal posed the question as to whether these failures amounted to ‘professional misconduct.’[25] The Tribunal continued:
There is nothing in the cases cited to us which assists us with this question. If one were to take a literal reading of the words of the Act, as the respondent has submitted, many petty shortcomings or mistakes of a teacher would be classified as misconduct. This cannot have been the intention of the legislation. Clearly not every mistake on the part of a teacher is misconduct.
In our view the legislation must be applied having regard to the fact that we are considering a finding of professional misconduct. This is a grave finding, and no less grave for the fact that there may be more blameworthy examples of misconduct, such as ‘serious misconduct.’
We think it implies a conscious or deliberate, or reckless decision to depart from an accepted standard in the teaching profession. Misconduct of any description is not concerned with behaviour that is merely negligent. It may well be that in some circumstances gross negligence may constitute misconduct. However we do not think this is a case of gross negligence.
The disciplinary provisions of the Act exist to regulate the behaviour of teachers to ensure that teachers apply consistent standards of professional behaviour. It is against those standards that the member of the public or members of the teaching profession will judge a teacher’s conduct. The conduct is not to be looked at in a vacuum. It must be conduct that the public is entitled to expect from a teacher following the best practice of his profession. It is not an absolute concept. As the respondent’s submissions point out, it must be applied with common-sense.[26]
[24]Reasons [145].
[25]Reasons [148].
[26]Reasons [149]–[152].
The Tribunal referred to Parr v Nurses Board of Victoria,[27] and to Kellam J’s consideration of whether a nurse had engaged in ‘unprofessional conduct of a serious nature’. His Honour said:
The question of whether a nurse has engaged in unprofessional conduct of a serious nature must depend on the facts of each case. Clearly such conduct would not be serious if it was trivial, or of momentary effect only at the time of commission or omission by which the conduct was so defined. It must be a departure, in a substantial manner, from the standards which might reasonably be expected of a registered nurse. The departure from such standards must be blameworthy and deserving of more than passing censure.[28]
[27](1998) 16 VAR 118 (‘Parr’).
[28]Ibid [123].
The Tribunal also made reference to the decision of Morris J when he was sitting as President of the Tribunal in Vissenga v Medical Practitioners Board of Victoria,[29] where his Honour said:
neither the public nor the peers of a medical practitioner expect perfection at all times. Human frailty visits every person, including those who are medical practitioners. Reasonable members of the public, and the reasonable peers of medical practitioners understand this. Reasonable people tolerate occasional lapses, particularly if those lapses do not form a consistent course of conduct or, if taken separately, are insufficiently serious to warrant intervention by those charged with acting on behalf of the State.[30]
[29](2004) VCAT 1044 (‘Vissenga’).
[30]Ibid [33].
Having noted that some of the authorities looked at a course of conduct or repeated conduct rather than a single act in isolation when considering whether or not there was misconduct,[31] the Tribunal stated:
We acknowledge that the various statutes which govern professional misconduct have significant differences in wording. We acknowledge also that here we are not dealing with serious misconduct. It is said to be misconduct at the lowest end of the spectrum provided for in the Act, warranting only consideration by an Informal Panel charged with very limited powers.
However, we think these principles apply whether the misconduct is said to be at the lower or higher end of the spectrum. It must be conduct that the public or other teachers would consider to be a departure from the accepted standards of a reasonably proficient teacher, and it must attract a degree of opprobrium, or blameworthiness. It is not enough to show an innocent mistake or miscalculation. What must be shown is a failure to follow commonly agreed standards of behaviour as a teacher, whether those standards are viewed through the prism of a teacher or a member of the public.[32]
[31]Reasons [154].
[32]Reasons [156]–[157].
The Tribunal having set out its views as to the proper interpretation of the legislation turned to consider whether the conduct of Mr O’Byrne fell foul of the standard required. It first considered the failure to communicate effectively by using unnecessarily abstruse correspondence. The Tribunal concluded that such correspondence could constitute misconduct if it was written for the purpose of protecting the offending teacher, protecting the reputation of the school or for some similar reason.[33] The Tribunal concluded that in this case Mr O’Byrne had not taken such deliberate action. The Tribunal said:
we are not persuaded that a well-informed member of the public or teacher would consider a letter written in good faith by a principal to a parent, but written in an obscure manner, constitutes misconduct within the terms of the definition of the Act.[34]
[33]Reasons [159].
[34]Reasons [162].
Next, the Tribunal considered whether the failure to interview Ms Munro constituted an act of misconduct.[35] The Tribunal was unable to characterise this as an act of misconduct.[36]
[35]Having found that Mr O’Byrne had adequately investigated the complaint against the teacher there was no basis upon which to consider whether such a failure may have constituted misconduct. See Reasons [164].
[36]Reasons [165]–[175].
Next, the Tribunal considered whether the failure by Mr O’Byrne to notify the Munros of the outcome of the investigation constituted misconduct. The Tribunal said:
Given that we have not been able to be pointed to any positive obligation on the principal of a school to notify [a] student or a parent of the outcome of an investigation against a teacher, we are not able to be satisfied that failure to do so constitutes misconduct.
In the circumstances before us and given the doubt about the correct procedure to follow, we are not persuaded that this particular is made out. We do not find that the Principal’s failure to advise the parents of Ms Munro of the outcome of the investigation against the teacher was an act of professional misconduct.[37]
[37]Reasons [189]–[190].
The Tribunal concluded that Mr O’Byrne had not committed an act of misconduct and it set aside the decision of the informal hearing panel.[38]
[38]Reasons [191].
Proposed grounds of appeal
The proposed grounds of appeal are:
1.The Tribunal erred in law by confusing the term ’misconduct‘, which is defined in s 2.6.1 of the Education and Training Reform Act 2006 (Vic) (the ‘Act’), with the term ’professional misconduct’.
2.The Tribunal erred in law by imposing too high a standard for a finding of ’misconduct’ under s 2.6.1 of the Act.
3.The Tribunal erred in law by failing to have proper regard for the purpose of construing the meaning of ’misconduct’ within the meaning of that term in s 2.6.1 of the Act to the distinction between the terms ’misconduct’ and ’serious misconduct’.
4.The Tribunal erred in law by imposing an extra-legislative gloss on the term ’misconduct’ that had the effect of elevating the requirement for an adverse finding by wrongly requiring that when the yardstick is what a member of the public is entitled to expect from a reasonably proficient teacher, it must be a ’well informed member of the public’, ’or a well-informed teacher’ — ’someone who understands all of the issues confronting the Principal’.
5.The Tribunal erred in law by imposing too high a standard for a finding of ’misconduct’ that conduct by a teacher must involve ’a conscious or deliberate, or reckless decision to depart from an accepted standard in the teaching profession.’
6.The Tribunal erred in law by imposing too high a standard for a finding of ’misconduct’ by excluding conduct that is ‘merely negligent’.
7.The Tribunal erred in law by imposing too high a standard for a finding of ’misconduct’ that ’misconduct applies to a course of conduct, or repeated conduct, rather than a single act in isolation.’
8.The Tribunal erred in law by imposing too high a standard for a finding of ’misconduct’ that ’it must attract a degree of opprobrium or blameworthiness.’
As can be seen, all grounds of appeal reduce to the issue of the proper interpretation of the term ‘misconduct’ in the Act.
In oral submissions on the application for leave to appeal, senior counsel for the Institute clarified its position that if the Tribunal had given the legislation its proper construction, the outcome very likely would have been different with a finding of misconduct on the part of Mr O’Byrne. The Institute says that that finding might have resulted because Mr O’Byrne did not:
(a)adequately advise the Munros of the nature and process of the investigation into the allegations raised by their daughter;
(b)adequately respond to Mr Munro’s emails of 24 October and 18 December 2012; and
(c)advise and explain to Mr Munro (as the complainant) the outcome of his investigation into the allegations against the teacher.[39]
[39]These were allegations 2, 3ii and 4 in the Notice of Hearing: see [44] above. The Institute did not press allegations 1 and 3i that were described in the Notice of Hearing (alleged failures to notify the Munros about the allegations raised by their daughter and to interview her).
The Institute seeks to have the Tribunal’s finding of no misconduct quashed with the matter to be remitted to the Tribunal.
The proper interpretation of ‘misconduct’ under the Act
The Institute was critical of the Tribunal for referring to ‘professional misconduct’ rather than simply ‘misconduct’ when considering how Mr O’Byrne had acted. For example, the Tribunal stated:
This proceeding concerns disciplinary action brought against the Principal for his part in investigating the offending teacher’s behaviour and communicating with the parents of Georgia. It is said by the VIT that in doing so he committed an act, or acts, of professional misconduct.[40]
[40]Reasons [45].
The Institute submitted that there is a significant difference between the terms misconduct and professional misconduct and there is no reference to ‘professional misconduct’ in the Act. It pointed to the predecessor of the Act[41] which used the term ‘serious misconduct’ and the interpretation of that phrase as equating to ‘professional misconduct.’[42] In turn, the Institute pointed to the cases in which ‘professional misconduct’ had been described as disgraceful or dishonourable conduct worthy of strong reprobation by reference to the standards of peers of good repute and competency and conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.
[41]Victorian Institute of Teaching Act 2001.
[42]Davidson v Victorian Institute of Teaching [2007] VCAT 920 which relied on Parr (1998) 16 VAR 118.
By analogy, the Institute referred to the development of legislation regulating the medical and legal professions which initially limited the role of the relevant regulatory body to investigation of more serious conduct and then broadened the role to enable the investigation of more minor conduct.[43] So, the Institute contended, the legislation governing teachers has been broadened in a similar fashion to enable informal panels to investigate less serious conduct. It says that the result is that the Act merely requires ‘conduct occurring in connection with the practice of teaching that is of a lesser standard than a member of the public or members of the teaching profession are entitled to expect from a reasonably proficient teacher.’[44]
[43]See, for example, the Medical Practice Act 1994 s 45A(1) which formerly governed health professionals and provided for hearings of a formal panel into ‘unprofessional conduct of a serious nature’ and ‘unprofessional conduct not of a serious nature’.
[44]Emphasis added by the Institute.
The Institute submitted that this broadening of the Institute’s investigative powers in the amendments made to the Act in 2009 reflected Parliament’s intention. In this regard, it drew attention to the Explanatory Memorandum and the Second Reading Speech. The Explanatory Memorandum stated that the purpose of the amendments included making changes to the investigation of registered teachers by widening the grounds on which a teacher may be investigated and broadening the role of informal hearing panels.[45] The Memorandum explained that s 2.6.33[46] was amended ‘to broaden the powers of the Institute to investigate matters below the level of serious misconduct by including a reference to ‘misconduct.’[47] Other clauses of the Explanatory Memorandum support the proposition that the role of informal panels was to be expanded once the amendments took effect.[48] In the Second Reading Speech, the minister said:
The Bill will give the Institute the power to investigate allegations below the level of serious misconduct and to impose a greater range of sanctions …I believe that the Institute’s capacity to undertake its regulatory function will be enhanced by expanding investigatory powers to include less serious matters. This broadening of the Institute’s current powers is needed so that the Institute will be able to respond with greater flexibility and nuance to different levels of misconduct and to serious incompetence.[49]
[45]Explanatory Memorandum, Education and Training Reform Amendment Bill 2009 cl 1.
[46]See [8] above.
[47]Explanatory Memorandum, Education and Training Reform Amendment Bill 2009 cl 29.
[48]Ibid cll 35, 37.
[49]Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2009, 4612 (Bronwyn Pike MP).
The minister stated that the change was intended to bring the teaching profession into line with the regulation of other professions.[50]
[50]Ibid.
The Institute submitted that its jurisdiction over misconduct enables adverse findings to be made by informal hearing panels of the Institute by reference to ordinary community standards and those generally within the profession of teaching. In its submission, such conduct may require modest determinations to be imposed at an informal hearing to maintain standards of professional practice for the profession.
The Institute stressed the Act’s reference to members of the public and members of the teaching profession as setting the standard. In its view, there was no warrant to import (as the Tribunal had done) the rider that it must be someone ‘who understands all of the issues confronting the Principal’ and that it must be ‘informed by common sense and a sense and a consideration of the practical exigencies of the role of Principal.’[51] The Institute submitted that this was an inappropriate gloss on the legislative provisions. It contended that what the Tribunal did detracts from the legislation’s intended effect by interposing the additional requirement of the yardstick being ‘well-informed’ and having a high level of understanding of issues confronting principals. The Institute argued that it thereby erodes the role of the public in evaluating in a lay common sense way the contemporary acceptability of a teacher’s conduct.
[51]Reasons [144]. See [47] above.
The Institute submitted that the Tribunal had erroneously relied on Pillai v Messiter (No 2)[52] which considered the statutory test of ‘misconduct in a professional respect’ under the Medical Practitioners Act 1938 (NSW). In that case, Kirby P observed:
[52](1989) 16 NSWLR 197 (emphasis in original).
With the latest, and further, amendment it is arguable that the substitution of the new statutory test of ‘professional misconduct’ may introduce for consideration a wider class of conduct than has hitherto been regarded as relevant. But that is a question which can remain for a future case. It may not be examined in this appeal, because of the way in which the case was conducted before the Tribunal.
‘Misconduct’ means more than mere negligence:
The words used in the statutory test (‘misconduct in a professional respect’) plainly go beyond that negligence which would found a claim against a medical practitioner for damages. On the other hand gross negligence might amount to relevant misconduct, particularly if accompanied by indifference to, or lack of concern for, the welfare of the patient. Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner. These are the approaches which have been taken in our courts. They have been taken in the courts of England where such misconduct is alleged. And they have similarly been taken in the courts of the United States. The entry in Corpus Juris Secundum reads: ‘Both in law and in ordinary speech the term ‘misconduct’ usually implies an act done wilfully with a wrong intention, and conveys the idea of the intentional wrongdoing. The term implies fault beyond the error of judgment; a wrongful intention, and not a mere error of judgment; but it does not necessarily imply corruption or criminal intention, and, in the legal idea of misconduct, an evil intention is not a necessary ingredient. The word is sufficiently comprehensive to include misfeasance as well as malfeasance, and as applied to professional people it includes unprofessional acts even though such acts are not inherently wrongful. Whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and not from its consequences.’[53]
[53]Ibid 200.
In discussing the meaning of ‘misconduct’ under the Act, the Tribunal took the view that it must involve ‘a conscious or deliberate, or reckless decision to depart from an accepted standard in the teaching profession’ and was more than mere negligence.[54] The Institute contended that the Tribunal had thereby deprived informal panels of the capacity of regulating problematic conduct that falls within ‘misconduct’ but which is not conscious, deliberate or reckless. It submitted that requiring a ‘conscious or deliberate, or reckless decision to depart from an accepted standard in the teaching profession’ and removing from the jurisdiction of the Institute conduct that is ‘negligent’ would erode the capacity of informal hearing panels in particular to provide guidance and deterrence to teachers in respect of many forms of conduct which fall well short of ‘serious misconduct’, which is the bailiwick of the Institute’s formal hearing panels. In the Institute’s submission, it would detract from its capacity to maintain standards of professional practice for the profession and has no proper justification. Moreover, to require for a finding of misconduct that the conduct has occurred on more than one occasion is not necessary under the legislation and is wrong.
[54]Reasons [151]. See [48] above.
The Institute made similar criticisms of the Tribunal’s reference to the need for a degree of opprobrium or blameworthiness to be attracted before the conduct could be described as misconduct.[55]
[55]Reasons [157]. See [51] above.
The Institute submitted that if the correct test had been applied by the Tribunal, Mr O’Byrne’s conduct would likely have been found to constitute misconduct. The Institute submitted that Mr O’Byrne knew that the essence of what was being alleged by Ms Munro was that she had been the victim of sexualised comments on a number of occasions. In those circumstances, the Institute contends that it was incumbent on Mr O’Byrne to perform a very thorough investigation, communicate with the Munros about what he was doing and communicate the outcome to them in a proper way. This was said to be particularly so given the type of complaint that was made and the sensitivity of the situation. It demanded clear and appropriate communication about the investigation and its outcome. The Institute maintained that the fact that there were some exculpatory features does not detract from the conclusion that there was misconduct on the part of Mr O’Byrne.
The task of statutory interpretation requires consideration of the text, context and purpose. To recap, the definition of ‘misconduct’ is:
conduct of the teacher… occurring in connection with the practice of teaching that is of a lesser standard than a member of the public or members of the teaching profession are entitled to expect from a reasonably proficient teacher.[56]
[56]The Act s 2.6.1.
Two things are instantly apparent from the text. First, it is the conduct of the teacher ‘in connection with the practice of teaching’ that is under scrutiny. That sets the context in which the conduct is to be judged. It is in a professional context. Second, the teacher does not have to meet a standard of perfection. Rather, the requirement is for reasonable proficiency.
Reference to a member of the public and members of the teaching profession must necessarily require some standardisation. For example, some members of the public have irrational or extreme expectations and they do not represent the broader public view. It cannot be that the teacher’s conduct is to be judged by the expectation of such a fictional member of the public. So much was accepted by the Institute which contended that the teacher’s conduct is to be assessed by ‘an ordinary person in the public.’
In our view, the fictional members of the public and teaching profession must be taken to have information about the context in which the conduct occurred. That will necessarily include details of the preceding events, what the teacher reasonably anticipated would happen in the future, other issues the teacher (in this case, a busy school principal) was dealing with, any particular time pressures (such as here, the impending summer vacation). We do not take the Tribunal to have imported any broader concept by the use of the words ‘well informed.’ In short, the fictional person must have and understand information that gives context to the conduct which is sought to be impugned.
The legislative history is to some extent informative. One cannot cavil with the Institute’s characterisation of the amendments in 2009 as broadening the scope of teachers’ conduct over which it has oversight. Under the former legislation, it was only in the case of ‘serious misconduct’ that the Institute had an investigative role. There is no definition of ‘serious misconduct’ in the current form of the Act. There is only the definition of ‘misconduct.’ Nevertheless, the Act does use both terms. It follows that ‘serious misconduct’ is a type of misconduct of a worse kind. It is at the higher end of misconduct. The real question in this case is what conduct falls at the lower end of the spectrum. It seems to us that for conduct of a lesser kind to constitute misconduct, it must still involve unacceptable, improper or blameworthy behaviour that at least warrants admonition and disapproval. So much is recognised by the sanctions that may be imposed by an informal panel and by the fact that before a finding of ‘misconduct’ can be made there must be a hearing at which the teacher is entitled to make submissions. For the word ‘misconduct’ carries a taint with it that can blemish the career of any professional person. Consequently, a finding of misconduct against a person is not one to be made lightly and illustrates why perfection on the part of the teacher is not required and why teachers must be judged by the standard of an informed member of the public and informed members of the teaching profession. In short, not all mistakes will constitute misconduct.
We would not use the term ‘opprobrium’ to describe misconduct as the Tribunal did, nor would we ascribe to the view that negligence could never amount to misconduct.[57] However, when regard is had to the whole of the Tribunal’s reasons, we do not think that it misconstrued the Act, nor that it misunderstood its task or the standard to be applied. In our view, it is clear from its reasons that the Tribunal was alive to the distinction between misconduct simpliciter and serious misconduct and that the question for it was whether Mr O’Byrne’s conduct constituted misconduct.[58] The Tribunal was not putting a gloss on the statutory language. Rather, it was using descriptive terms which it thought best explained the meaning of ‘misconduct.’ The Tribunal’s reasons are not to be dissected and placed under a microscope. The words that they use are to be considered in the context of the whole of their reasons to ascertain whether the statute has been construed and applied properly. The use of an inapposite word or phrase does not undermine the substance of the Tribunal’s reasoning. True it is that the Tribunal referred to Parr and Vissenga (which concerned different legislation containing different terms).[59] But that is not surprising as the Institute brought those cases to the Tribunal’s attention. It is also true that the Tribunal referred to some of the authorities as indicating that misconduct may be established through a course of conduct or repeated conduct.[60] There is no discernible error in that. The Tribunal did not say that misconduct could not be established in the absence of a course of conduct. It merely noted that repeated conduct may constitute misconduct. Having considered the two cases and the potential role of repeated conduct, the Tribunal acknowledged that the provisions in other legislation ‘have significant differences in wording’ and acknowledged that in the case before it, the Tribunal was not dealing with serious misconduct.[61]
[57]Reasons [151], [154].
[58]Reasons [136], [141], [145], [156]–[158], [163], [165], [186], [189].
[59]Ibid [153], [155]. See [49]-[50] above.
[60]Ibid [154].
[61]Ibid [156].
In the present case, Mr O’Byrne was criticised for writing letters and emails that may have been expressed more clearly. We do not think that on any view, however, his correspondence could constitute misconduct. His emails and letters were not misleading and he was not seeking to achieve any ulterior purpose in writing them in the manner in which he did. When Mr O’Byrne became aware of the allegations made by Ms Munro, he immediately investigated her complaints. He did so thoroughly. He did not have the benefit of any guidelines that would assist him as to what to do or how to communicate with the various stakeholders. He made sure that he kept the Professional Standards Officer of the Catholic Education Office informed as to the steps he was taking. Having investigated the complaints, the teacher was disciplined. Mr O’Byrne is criticised for not informing the Munros of the outcome of the investigation. However, he was endeavouring to balance what he saw as the competing interests of the Munros with what he genuinely (perhaps mistakenly) thought were the privacy rights of others. It was a busy time of year. He was faced with dealing with the ramifications from the death of a student and an inquest into that death.
It follows from the above that we are not satisfied that the Tribunal’s decision is vitiated by error of law. Even if we had been of that opinion, we would not have remitted the proceeding to the Tribunal because, in all of the circumstances, it would not be open to the Tribunal to find misconduct on the part of Mr O’Byrne.
We would grant leave to appeal and would dismiss the appeal.
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