Queensland College of Teachers v Utz
[2015] QCAT 247
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Queensland College of Teachers v Utz[2015] QCAT 247
- Add to List
Queensland College of Teachers v Utz[2015] QCAT 247
Queensland College of Teachers v Utz[2015] QCAT 247
CITATION: | Queensland College of Teachers v Utz [2015] QCAT 247 |
PARTIES: | Queensland College of Teachers (Applicant) |
v | |
Glen Paul Utz (Respondent) | |
APPLICATION NUMBER: | OCR207-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 7 May 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Kanowski Dr Cullen, Member Member Lindgren |
DELIVERED ON: | 24 June 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Occupation regulation matters - teacher not suitable to teach – over-familiarity with students – swearing 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) (the QCAT Act). |
REASONS FOR DECISION
Introduction
- [1]Mr Utz is a high school teacher. He taught at a state high school from mid-2007 until November 2013. In November 2013 the Department of Education, Training and Employment suspended his employment, after allegations surfaced of him having inappropriate interactions with students. The Queensland College of Teachers investigated, and suspended Mr Utz’s teacher registration on 15 September 2014. The College then referred the matter to the Tribunal, which is a disciplinary body for teachers in Queensland.[1]
- [2]The Tribunal must decide whether a ground for disciplinary action is established. If it is, the Tribunal must decide what disciplinary action, if any, is warranted.
The conduct that led to the disciplinary proceeding
- [3]The conduct involved Mr Utz’s interactions with year 11 students in 2013, mainly in his drama class. At that time Mr Utz was 33 to 34 years of age. He had been registered as a teacher since July 2007.
- [4]The allegations made by the College are summarised below, together with any responses by Mr Utz:
- Mr Utz was a Snap Chat friend with a number of students, contrary to the Department’s policy that teachers must not become social media friends with students. Mr Utz communicated with a number of students using Snap Chat, with students being his “top 3 friends”: that is, the people with whom he most frequently communicated.
- Mr Utz uploaded images on Snap Chat:
- an image of himself captioned “Gym bitches!”;
- an image of his face, with two fingers held in a V, and his tongue poking through the centre of the V, captioned “Stahp it”.
- When those images were uploaded, Mr Utz was aware that at least one student was his Snap Chat friend.
- One day Mr Utz touched two male students on the buttocks, in “football player grab” style. Another male student was present.
- On another occasion one of the students mentioned in the previous paragraph jokingly said that his buttocks looked good after a workout. Mr Utz then slapped that student, and another male student, on the buttocks in “footy mate tap on the bum” style.
- On another occasion the two students mentioned in the previous paragraph were sitting on a desk, flexing their legs, and complaining about how sore their legs were after a workout. Mr Utz placed his hands on the leg of one of the boys and said: “Keep going boys, you have more work to do”. (Mr Utz says he cannot recall if this interaction took place).
- Approximately once per week during 2013, Mr Utz touched a female student on the side of her stomach. He sometimes made a joke of it, and sometimes apologised for doing it. (Mr Utz says he cannot recall if he touched the student in this way). On a number of occasions Mr Utz sat close to the student and put his arms around her. One day the student was lying on her back in class, working on her laptop. Mr Utz knelt down over her legs, asked her how she was, and placed his hands on her thigh for 10 to 20 seconds. On another occasion in class he massaged her shoulders, sides and lower back. (Mr Utz neither denies nor agrees with the allegation that he massaged the student). At some point Mr Utz told the student that he suffered from Tourette’s disorder, and was taking medication for that condition. (Mr Utz says he did tell students about his condition. He says this was appropriate). Mr Utz sent the student a video through Snap Chat of him watching television and saying the student’s first name in a scary voice.
- Mr Utz also sat close to and put his arms around another female student on a number of occasions in 2013. One day he sat behind the student in class, straddling her, and massaged her back. On another occasion he massaged her back while she was sitting on the floor during class. The massages continued on a weekly basis from about term 3. (Mr Utz neither denies nor agrees that he massaged this student). One day Mr Utz said to the student, in class: “I’m not going to give you an A for having great gymnast legs”. On one occasion the student was talking on her mobile phone during class. Mr Utz asked her to stop. She refused. Mr Utz attempted to grab the phone. The student put it in her bra. Mr Utz said “I’ll still get it” and pretended to reach toward her top.
- On a number of occasions Mr Utz “playfully” slapped the students mentioned in the previous two paragraphs on the leg, “high up on the quad muscle”.
- One day in drama class Mr Utz required students to “pick a body part and move with a partner in connection with that body part”. Mr Utz demonstrated with a female student. She nominated her elbow as the body part to use, but Mr Utz insisted on using her ear. This meant that the student had to get very close to Mr Utz during the demonstration. He rolled and required the student to “go over him”. Another incident involved the same student. The students had finished their assessments, and Mr Utz put on music so they could dance. The student was dancing with a friend. Mr Utz came up behind the student and ground “his pelvic area into her buttocks”. The student backed away, shocked, and sat down. (Mr Utz acknowledges that he “danced up behind the student but any actual contact with the student would have been accidental and certainly not sexual”). (The Tribunal notes that when interviewed, the student said that the contact lasted for about a second).
- In a lesson about The Taming of the Shrew, Mr Utz commented: “It’s funny that all women need a man in their lives”. A male student responded sceptically, and Mr Utz then commented that this student needed a man in his life. Mr Utz also commented during this lesson that “Three is more fun than two”. On other occasions Mr Utz also used sexual innuendo. (Mr Utz says that he would have mentioned, in passing, sexual innuendos used by Shakespeare. He says he thought that the students were old enough, but he now accepts it was inappropriate).
- Mr Utz swore in class, including using the word “fuck”.
- Mr Utz gave his mobile number to some students, and he had the mobile number of a male student. He spoke with that student by phone “without an educational purpose”.
- Mr Utz attended a gym outside of school hours with a male student, and took that student for driving lessons. This was done with parental consent.
- Mr Utz and a male student both worked part-time at a Police-Citizens Youth Club. On occasions, and with parental consent, Mr Utz drove the student from the club to a supermarket to get something to eat. (Mr Utz says this was for a legitimate purpose).
- Mr Utz was a first aid officer at the year 11 camp. During the camp he gave calf and foot massages to students. (Mr Utz says he did massage students’ legs and feet while on camp. He says he did this as first aid officer for students suffering from cramps. He says it was in the presence of other teachers. He says that following the camp, students would occasionally ask him for a massage in class, and he would sometimes massage their shoulders to encourage them to keep working if they had been writing for a long time).
- [5]Mr Utz accepts the allegations, subject to the comments noted above. The Tribunal finds that the incidents that have been alleged, including those that Mr Utz does not recall or has not specifically confirmed or denied, did occur.
- [6]Mr Utz argues that some of the incidents were appropriate: particularly telling students about his Tourette’s disorder; driving the student to the supermarket (with parental consent); massaging students at the camp; and (presumably) going to the gym with a student and taking him for driving lessons (with parental consent). On the limited information that the Tribunal has about those incidents, it would be reluctant to conclude that they were necessarily inappropriate. In certain circumstances, for example, it may be quite proper for a teacher to tell students about a medical condition from which they suffer. There might be nothing untoward in a teacher driving a student from a mutual workplace to a supermarket, and so on. On the other hand, the same incidents could be inappropriate if done surreptitiously and with a sinister motive. Much depends on the context and purpose. In the absence of clear surrounding evidence that these incidents were inappropriate, the Tribunal will exclude them from its consideration.
- [7]The remaining conduct, however – the social media contact, the buttock-slapping, the massages in class, the swearing, and so on – was clearly inappropriate.
- [8]Mr Utz concedes that aspects of the conduct involved giving special attention to some students, and that his conduct involved infringements of the Department’s Code of Conduct and its Student Protection Policy. He concedes that the conduct was inappropriate, but stresses that it was not sexualised or intimate.
- [9]The College submits that it is open to the Tribunal to find that some of Mr Utz’s conduct was, objectively, sexualised or intimate.
- [10]The conduct was over-familiar, and there was a sexual edge to much of it. However, the Tribunal does not think that Mr Utz was trying to groom students. The conduct was not hidden from view. Mr Utz was not attempting to seduce students or even lead them gradually toward sexual engagement. It was, rather, a matter of him acting like one of the adolescent gang, with the touching, banter and innuendo that adolescent interactions often entail. Accordingly, the Tribunal would refrain from describing the conduct as sexualised or intimate because those words tend to connote an agenda of grooming and seduction.
Is a ground for disciplinary action established?
- [11]The community does not want teachers to be aloof. Teachers should strive to relate to students, and to develop caring relationships. However, Mr Utz took familiarity well beyond what was proper. He acted like a peer rather than a teacher. Teachers are expected to model responsible behaviour and to maintain professional boundaries in their dealings with students. Mr Utz repeatedly fell short of these expectations.
- [12]
What disciplinary action should be taken?
- [13]The purpose of disciplinary action is not to punish a teacher. Instead, it is to further the objects of the legislation. These include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way.[4] It is essential that persons registered as teachers do not pose a risk of harm to children.[5] 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”.[6]
- [14]Various sanctions are available, ranging from a reprimand to the cancellation of a teacher’s registration.[7]
- [15]The College argues that a significant sanction is warranted. The College submits, accurately in the Tribunal’s view, that Mr Utz’s conduct “consisted of sustained, serious boundary violations” and that “apart from his admissions only limited insight has been exhibited by Mr Utz”. The College submits that the Tribunal should cancel Mr Utz’s teacher registration and prohibit him from reapplying for registration for three years from the date of the Tribunal’s order. The College also submits that any reapplication should be accompanied by a psychologist’s report addressing relevant matters.
- [16]The Tribunal agrees that the conduct is serious enough to warrant the cancellation of registration, and prohibition upon reapplication for a period. The Tribunal also sees merit in the proposal for a psychological report in the event of a reapplication. This would be an important measure in ensuring that students are protected. If a satisfactory report is not provided, no doubt the College will not grant Mr Utz renewed registration. Accordingly, the Tribunal will impose a requirement for a psychological report, largely in the terms sought by the College.
- [17]The more difficult issue in this case is how long the period of exclusion from teaching should be. The College submits that three years strikes an appropriate balance between the various relevant factors, including on the one hand the need to deter inappropriate behaviour, and on the other the potential for reform by Mr Utz. The College has referred the Tribunal to a number of cases, but has acknowledged that they are not analogous. A more analogous case is that of Queensland College of Teachers v HL.[8] That case also involved a teacher who was over-familiar with students, without sexual motivation. The Tribunal excluded the teacher from the profession for one year from the date on which she had been dismissed by her school, and imposed a requirement for a psychological report to accompany any reapplication for registration. The conduct in Mr Utz’s case is broadly comparable, but he was an older and more experienced teacher than the teacher in HL. Accordingly, a longer period of exclusion is warranted in his case.
- [18]The Tribunal considers that exclusion from the profession until 16 July 2016 is appropriate in this case. This particular date has been selected because it is a year after Mr Utz’s current registration would have expired. It is effectively a period of exclusion of approximately 32 months from when Mr Utz was suspended by the Department, and approximately 22 months from when his teacher registration was suspended by the College.
Non-publication order
- [19]It would clearly be undesirable for the students mentioned in the referral to be identified. They were children at the time. They have been drawn into the matter through no fault on their part. Accordingly, the Tribunal will prohibit the publication of the names and any other identifying details of the students, under section 66(1) of the QCAT Act.
Conclusion
- [20]Mr Utz did not live up to the trust that the community placed in him as a teacher. This was to the detriment of the students: they missed out on the benefit of proper professional guidance and support. Mr Utz has demonstrated some insight into the inappropriateness of his behaviour, but there is no indication that he has yet sought counselling or taken other steps to minimise the future risk to students. It is therefore necessary, in order to uphold standards and protect students, to exclude Mr Utz from the teaching profession for a not insubstantial period.
Footnotes
[1]Education (Queensland College of Teachers) Act 2005 (Qld) Chapter 6.
[2]Education (Queensland College of Teachers) Act 2005 (Qld) s 12(3)(a).
[3]Ibid s 92(1)(h).
[4]Ibid s 3(1).
[5]Queensland College of Teachers v Genge [2011] QCAT 163 at [12]
[6]Queensland College of Teachers v Brady [2011] QCAT 464 at [55].
[7]Ibid s 160(2).
[8][2013] QCAT 631.