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Queensland College of Teachers v Paulsen[2015] QCAT 226

Queensland College of Teachers v Paulsen[2015] QCAT 226

CITATION:

Queensland College of Teachers v Paulsen [2015] QCAT 226

PARTIES:

Queensland College of Teachers

(Applicant)

v

Dion Ashley Paulsen

(Respondent)

APPLICATION NUMBER:

OCR199-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 May 2015

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

Dr Cullen, Member

Member Grigg

DELIVERED ON:

16 June 2015

DELIVERED AT:

Brisbane

ORDER MADE:

Mr Paulsen is reprimanded for behaving in ways that do not satisfy standards of behaviour expected of a teacher.

CATCHWORDS:

Occupational regulation matters - teacher not suitable to teach – over-familiarity – swearing - facebook comments – reprimand

Education (Queensland College of Teachers) Act 2005 (Qld) s 92(1)(h)

APPEARANCES:

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

REASONS FOR DECISION

Introduction

  1. [1]
    Mr Paulsen has been a registered teacher since 2001. He is currently 41 years of age. The Queensland College of Teachers has referred a disciplinary matter involving Mr Paulsen to QCAT, which is a disciplinary body for teachers in Queensland.[1] The College considers that Mr Paulsen is not suitable to teach because of a series of incidents that transpired between 2006 and 2012 while he was teaching at state high schools.
  2. [2]
    The Queensland department responsible for education has had a number of name changes over the years. We will refer to it simply as the Education Department.

Issues

  1. [3]
    The issues we must decide are:
    1. What is the conduct in question?
    2. Is a ground for disciplinary action established?
    3. If so, what disciplinary action should be taken?

What is the conduct in question?

Agreed facts

  1. [4]
    The parties agree that the following incidents occurred.
  2. [5]
    In 2006, Mr Paulsen hit his head up against a wall in front of a class. Subsequently, the mother of one of the students had a meeting with Mr Paulsen, some other staff members and the student. They discussed the conduct of Mr Paulsen toward the student. Later, during a lesson, Mr Paulsen said to the student words to the following effect: “I suppose you’ll rush home and tell Mummy everything” and “You’re a mummy’s boy”. A month or so later the student was being disruptive in class. Mr Paulsen yelled at the student and tapped him on the forehead with his index finger. The student sat down and was teary. Mr Paulsen went over to the student’s desk and said words to the following effect:

I’m sorry that I got mad – it was only because my contract was not extended and I have nowhere to go. I only have a $1,000 ute, a tent and a swag. I’m basically fucked. I’ve got no job, no money, no family, and nowhere to go.

  1. [6]
    In 2008, Mr Paulsen commented to students during a class that he had used marijuana when he was younger.
  2. [7]
    On another occasion in 2008, Mr Paulsen was on playground duty. A year 9 male student was sitting on the edge of a wheelie bin. He dared Mr Paulsen to push him in.  Mr Paulsen pushed him in and laughed.
  3. [8]
    During a school holiday period in 2009, Mr Paulsen took a former student (who had been expelled from the school where Mr Paulsen was teaching) and a current student (a friend of the former student) go-karting one day, after the former student contacted Mr Paulsen to suggest they catch up. Mr Paulsen drove the boys to and from the venue, and offered them a two-for-one voucher for the go-karting.
  4. [9]
    In 2012, Mr Paulsen and a year 12 student at the school where Mr Paulsen was teaching became Facebook friends. Mr Paulsen was not a current teacher of the student but had taught him as a relief teacher in year 9 or 10. In about August 2012 Mr Paulsen liked a comment that the student posted regarding a night out he was having. In September 2012, the student changed his profile picture on Facebook. Mr Paulsen then sent the student a message: “Just blew my load … thanks”. In subsequent exchanges, Mr Paulsen clarified that he had been referring to the new picture but added “lol” to indicate that he had been joking. The student then blocked Mr Paulsen from his Facebook account.

Disputed allegations

Standard of proof

  1. [10]
    The parties disagree about whether a number of other incidents occurred. The standard of proof that applies in a disciplinary proceeding is the civil standard: on the balance of probabilities, sometimes referred to as reasonable satisfaction. Justice Dixon of the High Court observed in Briginshaw v Briginshaw:[2]

… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

  1. [11]
    In the same case Justice Rich commented:

In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires … the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.

  1. [12]
    The allegations against Mr Paulsen are of varying degrees of seriousness. The potential consequences of adverse findings are substantial, as they affect Mr Paulsen’s reputation and livelihood. It is therefore important that the Tribunal bears in mind the observations made by the High Court in Briginshaw.

Tattoo comment

  1. [13]
    The College alleges that during a mathematics class in 2007, Mr Paulsen made a comment to students to the following effect: “I am going to get a tattoo of footsteps going up my leg, if you know what I mean. So only someone special would know where they are”.
  2. [14]
    Mr Paulsen agrees that there was a discussion about tattoos but denies making the comment alleged.
  3. [15]
    The basis of the allegation is a document headed “6/11/08 Principal’s Office. Statement given by … [a named student]”. The document consists of several quotes of remarks made by the student about Mr Paulsen’s classes in 2007 including her account of the comment in question. The document was presumably written by the Principal while interviewing the student. The document is unsigned.
  4. [16]
    The College submits that it is more likely than not that Mr Paulsen made the alleged comment based on the following:
    1. the student’s statement;
    2. on 6 November 2008 the Principal reported the matter to the Ethical Standards unit of the Education Department;
    3. the Ethical Standards unit substantiated the allegation; and
    4. the director of the Ethical Standards unit wrote to Mr Paulsen on 28 November 2008 outlining the allegation and advising that the Department did not intend to take any action but “any repetition of this type of inappropriate behaviour on your part will attract a more formal response”.
  5. [17]
    In our view, matters (b) to (d) do not add any weight to the allegation. In relation to (b), presumably the Principal was obliged to report the matter, but even if not, the fact that he did would not establish anything other than that the Principal thought the matter worth investigating. In relation to (c), so far as the Tribunal is aware, the Ethical Standards unit did not obtain any other evidence. The fact that the Ethical Standards unit was satisfied that Mr Paulsen made the comment is not relevant in deciding whether we should reach the same conclusion. In relation to (d), it is not suggested that Mr Paulsen had been asked for input, or that he had conceded that he had made the comment. The Tribunal does not know if he responded to the letter. Assuming he did not, the Tribunal would not take his non-response as an admission, in circumstances where no response had been sought and the letter indicated that the matter was considered closed.
  6. [18]
    This leaves the sole basis for the allegation an unsigned statement made by a student probably a year or more after the incident. The comment is said to have been made in class but there are no statements from other students. The allegation is relatively serious, because of the sexual connotation, but the proof is slender. Bearing in mind the observations of the High Court in Briginshaw,[3] the Tribunal is not satisfied on the balance of probabilities that Mr Paulsen made the comment.

Swearing

  1. [19]
    The allegations about swearing are partly-disputed.
  2. [20]
    The College alleges that in 2009 Mr Paulsen said to a student in a year 9 class “Do your fucking work” or words to that effect, and also that he swore in classes on other occasions in 2009, including in year 9 science classes.
  3. [21]
    Mr Paulsen concedes that he swore in class, though only rarely. He denies having made the quoted comment.
  4. [22]
    The College relies on a number of recorded interviews conducted with students in October 2009. This was a little over a month after the alleged “Do your fucking work” comment. The student to whom that comment was allegedly made said that he responded by telling Mr Paulsen to “Get fucked”, and Mr Paulsen then sent him to the office for swearing. The student also said that Mr Paulsen swore frequently in class when angry. Five other students indicated that Mr Paulsen had used swear words in class, but generally they said it had been infrequent. Some said the words had not included the ‘F word’. Two students said they had not heard Mr Paulsen swear at all.
  5. [23]
    These students may not have always been in the same class, so the various statements are not necessarily inconsistent. We do not know whether any of the students were in the classroom when the “Do your fucking work” comment was allegedly made. In any event, there is no evidence from another student that this particular comment was made.
  6. [24]
    An investigator from the Education Department put the “Do your fucking work” allegation to Mr Paulsen by letter in April 2010. Mr Paulsen responded, denying the allegation. Mr Paulsen said that he had told the student to return to his seat and the student responded with “Fuck off” and “Get fucked”, and threatened that he would report Mr Paulsen for swearing if Mr Paulsen reported the student. Mr Paulsen sent the student to the office, and the student was suspended. In his letter, Mr Paulsen asked the investigator to interview a teacher aide who had been present. The investigator later responded by saying that he had not interviewed the teacher aide, as he was satisfied that the allegation was not substantiated on the existing evidence.
  7. [25]
    The College submits that the Tribunal should accept the allegations based on the students’ interviews and that fact that the Principal reported the allegation of the “Do your fucking work” comment to the Ethical Standards unit. Again, the Tribunal does not consider the fact that the Principal reported the matter to be of any probative value. The assertion that Mr Paulsen said, “Do your fucking work” is not inherently implausible in circumstances where a number of students confirm that Mr Paulsen swore on occasions, and Mr Paulsen himself acknowledges having sometimes sworn in the presence of students. On the other hand, the allegation was made by a student who had been sent by Mr Paulsen to the office for swearing and who was then suspended. That student paints a much more damning picture of Mr Paulsen’s general conduct than other students. The teacher aide was a relevant and potentially very reliable witness but she was not interviewed by investigators. On balance, we are not satisfied to the requisite standard that Mr Paulsen made the comment “Do your fucking work”. We find that Mr Paulsen did swear in class on other occasions, but only rarely.

Drawing penises in a book

  1. [26]
    The College alleges that in about term 1 in 2009, Mr Paulsen drew penises in the science book of a student (student A). This was the same student Mr Paulsen pushed into a bin the year prior.
  2. [27]
    In the student’s interview in October 2009, he said that the drawings were done while he was out of the room, but another student (Student B) told him that Mr Paulsen had done them. According to a summary of Student B’s interview, which also occurred in October 2009, Student B said:

… he recalls rude things being drawn in the book of [Student A] and thinks that Mr Paulsen drew them.

He stated that he recalls [Student A] being sent out of the class for some reason, his books left in the class and recalls Mr Paulsen drew pictures of penises in it.

  1. [28]
    The College submits that it is more likely than not that Mr Paulsen drew the pictures, having regard to the students’ interviews, the fact that the Principal reported the allegation to the Ethical Standards unit, and the fact that the Education Department sent a notice to the College notifying it of the allegation.
  2. [29]
    The Principal’s report and the Department’s notice have no probative value in deciding whether Mr Paulsen drew the pictures: the authors of those documents did not witness the events. The only relevant evidence is that of Students A and B. Student A did not see who drew the pictures. Student B at one point said that Mr Paulsen drew them, but at another point said only that he thinks that Mr Paulsen drew them. The allegation is a serious one, and the evidence against Mr Paulsen is equivocal. If Mr Paulsen had drawn penises in a student’s book, this would probably have been observed by several students and it would have stuck in their minds. Yet there are no statements from other students. We are not satisfied on the balance of probabilities that Mr Paulsen drew the pictures.

Facebook friendship request

  1. [30]
    The College alleges that Mr Paulsen initiated the Facebook connection with the student to whom Mr Paulsen sent the message about the profile picture. That student told his interviewer that he and Mr Paulsen had become Facebook friends as a result of a friendship request sent by Mr Paulsen.
  2. [31]
    Mr Paulsen says that the friendship request came from the student.
  3. [32]
    In the absence of documents clarifying the matter, or a course of conduct suggesting that one party was driving the contact, we do not consider either scenario to be more probable. We are therefore not positively satisfied on the balance of probabilities that Mr Paulsen sent a friendship request.

Summary of the facts found by the Tribunal

  1. [33]
    Putting together the agreed facts, and our findings on the disputed allegations, we find that the conduct in question consisted of the following:
    1. In 2006, Mr Paulsen hit his head up against a wall during class. He made comments to a student about the student being a “mummy’s boy”. He yelled at the student and tapped him on the head with his index finger. He then apologised to the student for getting angry and told the student about his difficult personal circumstances in order to explain his behaviour.
    2. In 2008, Mr Paulsen commented to students in class that he had used marijuana when he was younger.
    3. In 2008, Mr Paulsen pushed a student into a wheelie bin in response to a dare from the student.
    4. In 2009, Mr Paulsen swore in class on rare occasions.
    5. In 2009, Mr Paulsen took a former student and a current student go-karting.
    6. In 2012, Mr Paulsen was Facebook friends with a year 12 student. He sent a message to the student to the effect that he had “blown his load” after he saw the student’s new profile picture. We accept that Mr Paulsen intended the comment as a joke, but it was clearly a very inappropriate comment for a teacher. The student did not think it was funny.

Is a ground for disciplinary action established?

  1. [34]
    Overall, the incidents demonstrate that Mr Paulsen has not always maintained professional standards. On occasions he has acted oddly and inappropriately, modelled undesirable behaviour, yelled at a student and made demeaning comments, made inappropriate personal disclosures, and been over-familiar with some students. He has failed to maintain professional boundaries. He should not have conducted a Facebook friendship with a student, let alone made a sexual comment.
  2. [35]
    The Tribunal recognises that high school teachers have jobs that can, at times, be stressful. Some of Mr Paulsen’s behaviours were probably inappropriate reactions to stress, but overall there was a pattern of poor judgment. Mr Paulsen has behaved in a variety of ways that do not satisfy standards of behaviour generally expected of a teacher. This indicates unsuitability to teach.[4] While the concerning behaviours have become less frequent over time, they have persisted up to 2012. This was despite Mr Paulsen having received the letter of caution in 2008 (discussed in paragraph 16 above), and a Departmental reprimand in 2010 together with a suspended reduction in pay for six months.
  3. [36]
    The parties agree, and we find, that Mr Paulsen remains not suitable to teach. Therefore, a ground for disciplinary action is established.[5]

What disciplinary action should be taken?

  1. [37]
    The purpose of disciplinary action is not to punish the teacher. Instead, it is to further the objects of the EQCT Act. These include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is delivered in a professional way.[6] Although punishment is not the aim, deterrence is a relevant consideration: the sanction imposed must provide “general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question”.[7]
  2. [38]
    Various sanctions are available, ranging from taking no further action to cancelling the teacher’s registration and prohibiting the teacher indefinitely from re-applying for registration.[8]
  3. [39]
    The College submits that the Tribunal should suspend Mr Paulsen’s registration for six months, with the suspension being suspended for 18 months provided that Mr Paulsen is not subject to any disciplinary action during that period. The College draws attention to the fact that Mr Paulsen is an experienced teacher, and that he persisted with inappropriate conduct despite warnings. The College has cited cases where other teachers were excluded from the teaching profession for periods, or had their registrations suspended. However, in view of this Tribunal’s findings on the disputed allegations, we do not regard the cases as closely comparable. 
  4. [40]
    Mr Paulsen submits that a warning or reprimand is sufficient. He notes that there have not been incidents of concern in the classroom in recent years and submits that this shows insight and successful behaviour modification. Since the disciplinary proceeding was commenced, he has completed a certificate course called Safe Professional Boundaries: Holding the Line. He submits that there is a low risk of further inappropriate conduct.
  5. [41]
    It is also relevant to note that on account of the Facebook communications in 2012, the Education Department in 2013 issued a formal reprimand to Mr Paulsen under the Public Service Act 2008 (Qld) and a requirement that he re-familiarise himself with the Code of Conduct for the Queensland Public Service and the Department’s Standard of Practice.
  6. [42]
    Presumably, it has been a salutary experience for Mr Paulsen to have been subject to a disciplinary referral to the Tribunal. Most of the conduct in question occurred several years ago. He has improved his behaviour in the classroom. He has completed a relevant course, and he has been required by the Department to undergo relevant re-training. These measures reduce the risk of further poor judgment and inappropriate behaviour. We accept that the risk is low, and that a reprimand is a suitable sanction in the circumstances.

Conclusion

  1. [43]
    Mr Paulsen has demonstrated poor judgment and inappropriate behaviour as a teacher on a number of occasions over the years, to the extent that he has been found not suitable to teach. However, he has taken steps to reform. There are good prospects that he will meet the required standards of behaviour in future. The objects of the EQCT Act are adequately met by reprimanding Mr Paulsen.

Footnotes

[1]Education (Queensland College of Teachers) Act 2005 (Qld) Chapter 6.

[2][1938] HCA 34.

[3]See paragraphs 10-11.

[4]Education (Queensland College of Teachers) Act 2005 (Qld) Act s 12(3)(a).

[5]Ibid s 92(1)(h).

[6]Ibid s 3(1).

[7]Queensland College of Teachers v Brady [2011] QCAT 464 at [55].

[8]Education (Queensland College of Teachers) Act 2005 (Qld) Act s 160(2).

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Dion Ashley Paulsen

  • Shortened Case Name:

    Queensland College of Teachers v Paulsen

  • MNC:

    [2015] QCAT 226

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski, Member Cullen, Member Grigg

  • Date:

    16 Jun 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) HCA 34
1 citation
Jump To
Cite 1 - (1938) HCA 34
Queensland College of Teachers v Brady [2011] QCAT 464
1 citation
Jump To
Cite 1 - [2011] QCAT 464

Cases Citing

Case NameFull CitationFrequency
Queensland College of Teachers v DCG [2016] QCAT 292 citations
1

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