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  • Unreported Judgment

Queensland College of Teachers v EMK

 

[2016] QCAT 339

CITATION:

Queensland College of Teachers v EMK [2016]

QCAT 339

PARTIES:

Queensland College of Teachers

(Applicant)

 

v

 

EMK

(Respondent)

APPLICATION NUMBER:

OCR028-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Gordon

Member Day

Member Kanowski

DELIVERED ON:

31 August 2016

DELIVERED AT:

On the papers

ORDERS MADE:

EMK is prohibited from reapplying for registration or permission to teach for a period of 12 months from the date of this order.

CATCHWORDS:

EDUCATION – SCHOOLS – GOVERNMENT SCHOOLS – TEACHERS’ EMPLOYMENT AND CONDITIONS OF SERVICE – DISCPILINARY MATTERS – where sexualised communication with student - whether suitable to teach – whether should be prohibited from reapplying for registration for a period

Education (Queensland College of Teachers) Act 2005 (Qld), ss 7, 11, 12, 12A, 92(1)(h), 97, 158(1), 161(2)

Queensland College of Teachers v MC [2012] QCAT 213

Queensland College of Teachers v Banyai [2013] QCAT 180

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REPRESENTATION:

APPLICANT: Jonathan Gormley, Principal Legal Officer, Queensland College of Teachers.

RESPONDENT: Andrew Anderson, solicitor, of Boe Williams Anderson Anderson Fredericks Turner

REASONS FOR DECISION

  1. [1]
    EMK started teaching in 2008 on a contract basis, and became a full time teacher in 2009.  He taught English and Drama at High School level continuously until the end of 2014 when he commenced a period of extended unpaid leave.  His current registration as a teacher was cancelled on 26 July 2016 as a result of non-payment of the annual registration fee.
  2. [2]
    On a date in January 2015 EMK self-reported to a pastor closely connected with the school that in 2014 he had been involved in inappropriate online communications with a student who attended the school where he taught.  The pastor informed the school principal.  There was then a meeting between EMK and the school principal where EMK informed the school principal about exchanging a number of sexual messages with the student using the Grindr app.
  3. [3]
    An investigation was then conducted by the Queensland College of Teachers.  The student made a statement and EMK was interviewed.  The matter was referred to the Professional Practice and Conduct Committee of the College of Teachers who referred the matter to the Tribunal as a disciplinary proceeding.

Agreed facts

  1. [4]
    There is an agreed statement of facts signed on behalf of the College of Teachers and by EMK.
  2. [5]
    In that statement it is agreed by the parties that EMK is not suitable to teach and that therefore there is ground for disciplinary action against him under section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) (the ‘Education Act’).
  3. [6]
    The agreed facts are that a male student attended the school where EMK taught.  The student was not taught by EMK, and they were not involved together in any extra-curricular activities.
  4. [7]
    There were three periods of communication in 2014 between EMK and the student using the Grindr application while the student was in year 12 at the school. 
  5. [8]
    The first period was over a one or two week period sometime between 1 April 2014 and 31 July 2014.  It was during this first period of communication  that EMK and the student realised that they knew each other through their common connection with the school.  Despite that, EMK continued to engage in communications with the student for a period of time.  In this period they exchanged mobile telephone numbers.  Then EMK ceased to respond to the student’s attempted communication.
  6. [9]
    About three weeks after the first period of communication, the student initiated further communication with EMK by text message and Facebook.  EMK replied after several such messages and they continued to communicate by text and through Grindr over a two week period sometime between 14 April 2014 and 31 August 2014.  After a period of about two weeks, again EMK ceased to respond.
  7. [10]
    About five or six weeks after the second period of communication, the student again initiated communication with EMK by text message. They communicated over a two week period sometime between 1 June 2014 and 22 November 2014.  After that time, again EMK ceased to respond.
  8. [11]
    There were a further period of communication between them using Skype on a date between the conclusion of the school year on 21 November 2014 and 4 February 2015.  This was after the student had graduated.
  9. [12]
    The topics of discussion between the student and EMK included their respective sexual interests and sexual history.  They also exchanged images of each other, including images of parts of their bodies without clothing and their genitalia.  During the fourth period of communication, they exchanged video images of each other including their genitalia.
  10. [13]
    They discussed the possibility of meeting but this did not happen.
  11. [14]
    Both the College of Teachers and EMK agree that EMK did not report these communications to supervisory staff, the Principal of the School or to any authority in a timely manner.
  12. [15]
    Both the College of Teachers and EMK agree that the conduct did not involve any ‘grooming’ and that there was no conduct which occurred on the school premises or during school activities. 
  13. [16]
    Mitigating factors in this case as submitted on EMK’s behalf are that since Grindr requires participants to confirm that they are 18 years old, this is not a case of a teacher targeting a forum in search of those under 18 years of age.  EMK was the first to disclose his conduct to school authorities and has participated in the expeditious resolution of the disciplinary proceedings.  It is submitted on his behalf that a lower penalty would provide an incentive to others to do likewise, and would be consistent with reasoning in a criminal law context.  EMK’s disclosure also enabled counselling to become available to the student earlier than otherwise would have happened.
  14. [17]
    It is also submitted on EMK’s behalf that the need for a deterrent in this case is reduced by the fact that EMK disclosed his own conduct, that there have been no previous student protection history issues involving EMK, and that he demonstrated genuine insight into the inappropriateness of his conduct and the desire to address it.  It is submitted that in the circumstances, a period of prohibition from reapplying for registration as a teacher for a period of 9 to 12 months is appropriate.
  15. [18]
    The College of Teachers accept that EMK should be awarded some leniency because he disclosed previous unknown guilt.   The College also accept that he has displayed insight through his disclosures and admissions and his acknowledgement of wrongdoing.  The College also put forward that there is nothing in this case to show that the student in this case was vulnerable or lonely.  However, the College submits that EMK had a clear and unequivocal duty to cease the communications with the student and to report the matter upon discovering the student’s identity.  The College suggests that an appropriate sanction would be for EMK to be prohibited from applying for registration as a teacher for a period of 36 months.

The legal background

  1. [19]
    This matter comes to QCAT under section 97 of the Education Act.  That section provides that if the Queensland College of Teachers reasonably believes that there is a ground for disciplinary action against a teacher for a “general matter” then it must refer the matter to the Tribunal.  The College of Teachers did so on 23 February 2016,[1] alleging that EMK was not suitable to teach, this being one of the general matters set out in the Act.[2]
  2. [20]
    Since EMK’s registration as a teacher has already been cancelled for non-payment of the registration fee, he is now a former approved teacher under the Education Act.  As such the relevant disciplinary options (apart from taking no action) are those described in section 161 of the Act:-
  1. (b)
    make an order requiring the teacher to pay to the college, by way of costs, an amount QCAT considers appropriate having regard to—
  1. (i)
    any expenses incurred by the college in investigating the matter; and
  1. (ii)
    the expenses incurred by the college in the proceedings before QCAT;
  1. (c)
    if QCAT would have made an order cancelling the teacher’s registration or permission to teach if the teacher had been an approved teacher—make an order prohibiting the teacher from reapplying for registration or permission to teach for a stated period from the day the order is made or indefinitely;
  1. (d)
    make an order that a particular notation or endorsement about the teacher be entered in the register.

The tests to apply

  1. [21]
    In this decision we have to decide whether EMK is suitable to teach.  This must be tested at the time we make our decision.
  2. [22]
    Sections 11, 12 and 12A of the Education Act set out the matters we must consider when deciding whether a person is suitable to teach.  By section 12(1)(b) we must consider whether the person is suitable to work in a child-related field.  By section 12A(1) we must consider whether the person poses a risk of harm to children.  “Harm” is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.[3] 
  3. [23]
    In cases such as this, the Tribunal has asked itself whether the teacher poses an unacceptable risk of harm to children when considering whether the teacher is suitable to teach and suitable to work in a child related field.[4] 
  4. [24]
    If EMK is not suitable to teach then it means that there are grounds for disciplinary action to be taken against him (as has been done in these proceedings) under section 92 of the Act.   Under section 158(1), we have to decide whether or not this is the case as soon as practicable after finishing the hearing.  We would then have a range of orders we could make as set out in section 161 of the Act.

Conclusion

  1. [25]
    It is our finding that EMK is not suitable to teach.  This is because teaching requires the highest standards of behaviour which should be kept closely within professional boundaries.  EMK transgressed these boundaries and the appropriate disciplinary processes are not yet complete.
  2. [26]
    It follows that there are grounds for taking disciplinary action against him under section 92(1)(h) of the Education Act so that these disciplinary processes can be completed.
  3. [27]
    When considering what disciplinary action should be taken against EMK in the light of our findings we remind ourselves that the aim of disciplinary action is to protect the public rather than to punish the teacher.  If EMK had been an approved teacher we would have cancelled his registration as a teacher.  In those circumstances, we can make an order prohibiting him from reapplying for registration or permission to teach within a stated period from the date of our order or indefinitely.[5]
  4. [28]
    As for the correct period of prohibition, we have been helpfully referred by both sides to previous decisions of the Tribunal in similar cases.  Many of these are more serious than this matter concerning EMK, because they involved younger or more vulnerable children or actual physical contact or lack of insight.  The closest comparable is Queensland College of Teachers v Banyai[6] where there was a prohibition from reapplying for registration as a teacher for 12 months from the date of the statement of agreed facts.  That case differs because the children were younger and the inappropriate communication was over a shorter period.  One significant difference between Banyai and EMK is that no images were passed in Banyai.  We regard that fact however, and the larger time over which the communication took place in this case, as offset by the fact that EMK reported his own misconduct.  EMK must be given credit for doing that.  That fact, and his reasons for doing so, demonstrate insight into the inappropriateness of his behaviour.  In the circumstances we think an appropriate period of prohibition is 12 months from the date of our order.
  5. [29]
    We note that a non-publication order was made by the Tribunal on 31 May 2016.  Therefore these reasons are to be published in a de-identified form.

Footnotes

[1] Received by the tribunal on 1 March 2016.

[2] Education Act s 92(1)(h).

[3] Education Act s 7.

[4] For example, Queensland College of Teachers v MC [2012] QCAT 213.

[5] Education Act s 161(2)(c).

[6] [2013] QCAT 180.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v EMK

  • Shortened Case Name:

    Queensland College of Teachers v EMK

  • MNC:

    [2016] QCAT 339

  • Court:

    QCAT

  • Judge(s):

    A/Senior Member Gordon Member Day Member Kanowski

  • Date:

    31 Aug 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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