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- Queensland College of Teachers v BJH[2015] QCAT 356
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Queensland College of Teachers v BJH[2015] QCAT 356
Queensland College of Teachers v BJH[2015] QCAT 356
CITATION: | Queensland College of Teachers v BJH [2015] QCAT 356 |
PARTIES: | Queensland College of Teachers (Applicant) |
| v |
| BJH (Respondent) |
APPLICATION NUMBER: | OCR042-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O'Callaghan Member Mac Donald Member Guthrie |
DELIVERED ON: | 25 August 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | TEACHER – suitability to teach – where inappropriate Facebook and other contact with students and former students – where teacher actively participated in inappropriate Facebook contact – where sexual contact with student – where ongoing sexual relationship with former student – where teacher made full admission to the allegations NON-PUBLICATION ORDER – where contrary to the public interest to identify former students name of school and teacher to protect the identity of the students Education (Queensland College of Teachers) Act 2005(Qld), s 3, s 12, s 92, s 158, s 161 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 66 Queensland College of Teachers v Chambers [2012] QCAT 491; cited Queensland College of Teachers v Genge [2012] QCAT 491; cited Queensland College of Teachers v Armstrong [2010] QCAT (OCR010-10) (Unreported); cited Queensland College of Teachers v Fields [2010] QCAT (OCR032-10) (Unreported); cited Queensland College of Teachers v Clough [2011] QCAT 125; cited Queensland College of Teachers v Teacher ABC [2012] QCAT 56; cited |
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).
REASONS FOR DECISION
Background
- [1]BJH is 34 years of age and was first registered as a teacher on 21 December 2006. BJH undertook code of Code of Conduct and Student Protection training through the Queensland Department of Education and Training at the school in May 2010.
- [2]Between 25 January 2007 and 18 January 2011, BJH taught at the school attended by the students whose complaints form the basis of the Queensland College of Teacher’s (‘QCT’) application. He was subsequently employed as a teacher at various other Queensland schools until his employment was terminated on 28 February 2012. BJH has not taught since that time.
- [3]On 17 April 2013, this Tribunal (differently constituted) cancelled BJH’s registration and prohibited him from reapplying for registration for a period of 12 months effective from 5 December 2012. That meant that BJH was eligible to again apply for registration from 5 December 2013. The matters relevant to that decision related to BJH’s Facebook communication between late 2011 and early 2012 with former students, aged 14 or 15 years. The Facebook communication was inappropriate because it was over familiar and sexual in nature. One of the conversations concluded with an exchange of mobile phone numbers.
- [4]The QCT filed the current application on 24 March 2015. A Statement of Agreed Matters was signed on or about 1 July 2015. The QCT and BJH agree that a ground for disciplinary action is established namely that BJH is not ‘suitable to teach’ as provided under s 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) (the Act).
Agreed facts
- [5]The parties agree that certain facts form the basis of the ground for disciplinary action. Some of those facts have already been set out in the background. The additional facts, to the extent the Tribunal considers necessary to reproduce follow.
- [6]In relation to Student 1:
- a)Student 1 was a student at the school between 29 January 2008 (Year 8) and 25 November 2011 (Year 11).
- b)While a student at the school, Student 1 had significant health and family issues.
- c)BJH taught Student 1 in Years 9 and 10.
- d)In or about March 2009, BJH accepted a Facebook ‘friend’ request from the student.
- e)In or about April 2009, BJH contacted the student on Facebook. From this occasion, at various times, BJH and Student 1 communicated on Facebook and that communication included discussion about personal interests and the student’s personal and home situation.
- f)On or about 17 July 2009, BJH gave the student his mobile number and asked the student to call him. The student called him late at night during the school holidays and they discussed, then argued, about the student’s relationship with a family member and how the student could deal with bullying and subsequent conflict. During the argument, the student had a physical seizure, which BJH learnt of sometime later.
- g)Between about 17 July 2009 and July 2010 BJH and the student did not communicate on Facebook or through other electronic communication.
- h)In or about July 2010, the student contacted BJH through Facebook.
- i)In or about August 2010, BJH and the student had a Facebook conversation during which the topic of sex was discussed.
- j)The topic of sex was subsequently discussed on other occasions.
- k)On a date between 1 September 2010 and 15 September 2010, BJH engaged in sexual contact with the student. BJH concluded from a Facebook conversation and from a perceived suggestion in class that the student wanted to stay after class. During the class, BJH asked the student to remain after class, which she did. BJH gave the student a birthday present and they hugged after the present was given. They then went to an enclosed area of the school where they kissed twice.
- l)On a date between 15 September 2010 and 22 September 2010, the student sent BJH an email message to the effect that she did not want to see him anymore. BJH responded by email asking the student not to tell anyone.
- m)During 2011, Student 1’s last year at the school, BJH and the student communicated on Facebook on rare occasions mainly consisting of short conversations asking about each other.
- n)In or about April or May 2012, the student contacted BJH on Facebook.
- o)On a date between 1 June 2012 and 31 July 2012, BJH and the student went on a date.
- p)About one week later BJH and the student had sexual intercourse. Subsequently they had sexual intercourse on another three occasions.
- q)About a week after the fourth occasion, the student sent BJH an email to the effect that the student could not see BJH or talk to him anymore as the student had commenced a relationship with another person.
- a)
- [7]In relation to Student 2:
- a)Student 2 was a student at the school between 29 January 2008 (Year 8) and 28 November 2010 (Year 10) and in the same class as Student 1.
- b)BJH taught Student 2 in Years 8, 9 and 10.
- c)At various times during her time as a student at the school, Student 2 had periods of depression and personal issues which, at various times, the student discussed with BJH.
- d)On an unknown date in 2009, BJH sent the student a Microsoft MSN ‘friend’ request to the student’s email account.
- e)On an unknown date in 2009, the student accepted the friend request.
- f)BJH and the student then engaged in continuous, although intermittent, social media communications, which were without a valid educational purpose but the topics were not sexualised in nature until 2011.
- g)In 2011 after the student had moved schools, the student and BJH communicated on social media and by text messages after mobile telephone numbers were exchanged.
- h)The social media exchanges had become personal and sexualised and included comments,
- a)
- You’re getting really hot; and
- You’re going to be like smoking when you’re older.
- i)The student’s mental health and sexual experiences were discussed; BJH’s sexual experiences were discussed.
- j)In 2012, after BJH had finished teaching, he asked the student to go to the movies with him to ‘catch up’.
- i)
- [8]In relation to Student 3:
- a)Student 3 was a student at the school between 23 January 2006 (Year 8) and 10 November 2010 (Year 12).
- b)While at the school, the student had significant health, personal and family issues and responsibilities.
- c)During 2007, BJH taught the student in Year 9.
- d)On an unknown date in 2008 or 2009, the student contacted BJH on ‘MySpace’.
- e)From that occasion onwards, BJH and the student communicated via MySpace and on MSN. That communication largely revolved around discussions about the student’s personal issues and included disclosure that BJH cared for the student’s welfare.
- f)BJH encouraged the student to take up leadership positions in the school, offered advice on how to handle some of the personal and family issues, offered tutoring, and study help.
- g)On an unknown date between 24 January 2010 and 19 November 2010, BJH and the student exchanged mobile telephone numbers and they exchanged text messages.
- h)Upon graduation, the student gave BJH a card stating that the student could not have gotten where the student did without BJH’s help and support.
- i)After graduation, BJH and the student continued to communicate through text messages and through other electronic means.
- j)The nature of BJH’s communication became increasingly affectionate and included disclosures that BJH cared about the student, loved the student and repeatedly asked to meet the student.
- a)
- [9]The Tribunal has considered the material provided by BJH.[1] The Tribunal is satisfied that his material is consistent with the agreed facts. The Tribunal makes findings of fact accordingly.
Has a ground for disciplinary action been established?
- [10]Despite BJH’s agreement that he is not suitable to teach, it is for the Tribunal to determine, under s 158(1) of the Act, whether a ground for disciplinary action has been established.
- [11]The phrase, ‘suitable to teach’ is not defined in the Act. However, s 12 provides some guidance as to the meaning.
- [12]Section 12(1)(b) requires consideration of whether the person is suitable to work in a child-related field. The Tribunal has previously observed:
Suitability to work with children requires a person having a high level of trustworthiness, personal integrity, an appreciation of the rights of a child to be protected from risks of harm and an appreciation of the boundaries that should exist between a child and their teacher.[2]
- [13]Section 12(3) of the Act provides broader considerations and prescribes that a person is not suitable to teach if the person:
- (a)behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or
- (b)otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach.
- [14]Whilst the ‘standard of behaviour generally expected of a teacher’ is not defined in the Act, the Tribunal has stated:
The standard expected should be the standard ‘reasonably’ expected by the community at large, as the actions of a teacher may impact directly upon the children or the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers.[3]
- [15]The Tribunal considers that the facts establish numerous instances of behaviour that fall below the standard of behaviour for a teacher which would reasonably be expected by the community. In relation to Student 1, there was inappropriate social media contact, sexual contact at school, when the student was in Year 10 and BJH has engaged in a sexual relationship with the student after the student left school. With respect to Student 2, BJH had private conversations with the student and made sexualised comments about the student on social media. He asked the student out. With respect to Student 3, he inappropriately communicated with the student on social media, exchanged text messages with the student and later declared his love for the student.
- [16]BJH’s conduct was improper. It was behaviour that was not of a standard generally expected of a teacher. The behaviour of the teacher crossed the appropriate and community-expected boundaries of the relationship between teacher and student.
- [17]The Tribunal finds that for the purposes of s 158(1) of the Act a ground exists for disciplinary action against BJH in that he is not suitable to teach.
What disciplinary action can be taken?
- [18]As BJH is a ‘former approved’ teacher, the Tribunal may take one or more of the following actions as set out in s 161(2) of the Act:
- a)take no further action;
- b)make an order that BJH pay costs to the QCT;
- 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 BJH from reapplying for teacher registration for a stated period from the day the order is made or indefinitely;
- d)order that a particular notation or endorsement about BJH be entered in the register.
- a)
- [19]Disciplinary action by the Tribunal is not punitive in nature. Disciplinary action is taken in the interest of the protection of children and the community. There must be a balance between general and specific deterrence.[4]
- [20]Section 4(d) of the QCAT Act imposes an obligation on the Tribunal to ensure like cases are treated alike. There are some complicating factors in this case. BJH has not taught since 28 February 2012. He has expressed his intention not to return to teaching. His registration was cancelled on 17 April 2013. Further, the conduct considered by the Tribunal arose over a similar period and involved students from the same school as was considered in the previous Tribunal decision. The QCT referred the Tribunal to a number of previous decisions, which it says provide some guidance as to the appropriate action in this case.
- [21]In QCT v Armstrong[5] a 50 year old, very experienced teacher engaged in a repeated pattern of behaviour with three children of a similar age and in similar circumstances at three separate primary schools. Social visits were made after school hours and the teacher bought the student gifts, badges and food. The teacher allowed the student to use school computers to access websites and view inappropriate emails, gave the student lollies and chocolates, showered alongside the student and classmates, sat directly opposite the student’s shower cubicle during a school camp, showered with the student in private.
- [22]In relation to another student, the teacher gave him gifts, transported the student in the teacher’s car and shared a bunk bed on school camp for five days.
- [23]With respect to the third student, the teacher paid money towards the cost of the school camp for the student and gave the student lifts in his car. Mr Armstrong’s registration had lapsed at the time of the order. He was prohibited from reapplying for five years.
- [24]In QCT v Chambers,[6] the teacher communicated over the school holidays with a student through Facebook. The teacher exchanged a significant number of messages about deeply personal issues including responding to the student’s disclosure about sexual abuse and pregnancy. They arranged to meet and the teacher took the student to the teacher’s home without parental consent. They hugged and the teacher gave the student a pregnancy test kit. The teacher failed to report that he suspected the student had been sexually abused. When confronted with the allegations the teacher made admissions and cooperated with the investigation. The teacher submitted that he did not attempt to gain anything, but had committed the misconduct in the misguided belief that it was for the student’s benefit. The teacher had been cautioned earlier about another minor matter. The Tribunal cancelled his registration but only imposed a three-month prohibition period, noting that he had been out of work for 14 months leading to the date of the order.
- [25]In QCT v Fields,[7] the teacher sent three letters to a student over three months. The contents of the first letter was highly sexualised in nature and directly propositioned the student for sex. The second and third letters were similarly fashioned but with the teacher attempting to cast some responsibility onto the student for the teacher’s sexual attraction. Sexual contact did not occur. The teacher did not participate in the proceedings and so the Tribunal could not exclude a possibility of it happening again. The Tribunal prohibited the teacher from reapplying for registration for five years.
- [26]In QCT v Clough,[8] the teacher made an inappropriate statement to a student in class and sent 30 to 50 text messages to a student, which were flirtatious in nature. The most serious event was the blurring of the teacher/student relationship with a female student who became his ‘close friend’. The teacher had been warned about the nature of his relationship with this particular student but ignored the advice. The teacher met the student in the park, touched and attempted to kiss her. The student pulled away. The Tribunal imposed a prohibition period of three years upon Mr Clough.
- [27]In QCT v Genge,[9] the teacher engaged in inappropriate sexual communications with a Year 12, male student via Facebook and she attempted to engage in an inappropriate physical relationship with the year 12 male student. The Tribunal was satisfied that cancellation was warranted, but discussed the factors relevant to the length of time that the teacher should be prohibited from reapplying. The Tribunal noted that her personal circumstances and the fact that she had been sexually harassed at her school by students were relevant considerations. The Tribunal also noted that her younger brother was a student at the school, which also blurred her professional boundaries. A psychological report was provided giving context to her behaviour and the Tribunal accepted the opinions of the psychologist. Personal and professional references were provided. She admitted the conduct early. She had been out of teaching for 10 months at the time of the decision. A submission by the QCT for a prohibition period of a further four years was rejected as too harsh a deterrence. The Tribunal imposed a further prohibition period of eight months, giving a total time away from teaching of 18 months.
- [28]In QCT v Teacher ABC,[10] the teacher failed to maintain a professional relationship with three students between 2000 and 2006 by exchanging letters, text messages and phone calls. In 2006, over four months the teacher sent over 1200 text messages to a Year 10 student. In 2007, the teacher engaged in a sexual relationship with one of his former Year 12 students, which lasted two months. The teacher admitted the conduct and surrendered his registration during the investigation. The complaint was received in 2008 and the teacher surrendered the registration in April 2009. The QCT took three years to file the proceedings. The Tribunal took that delay into account and imposed a prohibition of four years back dated to 1 April 2009, meaning that, in effect the teacher had a further one year of prohibition before he could reapply for registration.
What is the appropriate disciplinary action, if any, in this case?
- [29]The QCT submitted that, taking into account all of the circumstances, including taking BJH as he is today and with reference to the decisions in Genge and Teacher ABC, BJH be prohibited from reapplying for registration for five years from the date of the order.
- [30]The Tribunal accepts the submissions of the QCT that the misconduct involving the students was committed over a long period involving varying degrees of breaches of trust. Further, the Tribunal accepts that students must be protected from teachers who may induct themselves in inappropriate relationships with students. Students owe no duty to their teacher. Their teachers, parents and guardians set the boundaries within which they may act. The community expects that the teacher should have sufficient insight to know that young people can be harmed by such unprofessional conduct.
- [31]The Tribunal also considers it appropriate to take into account that the students involved had health and/or personal issues at the time of the improper conduct of which BJH was aware.
- [32]The QCT accepts that BJH admitted to the misconduct early, by providing the investigators with a statutory declaration on 6 February 2014 in which he states:
I wish to co-operate with the QCT during this investigation as much as possible and will accept any consequences handed down to me. I have since moved on from teaching and have no desire to re-enter the profession as I do realise that my conduct and behaviour is not at all appropriate or professional and I admit to being ill-suited to the profession.[11]
- [33]The QCT claims that BJH has failed to show remorse in that while he knew his behaviour was wrong, unprofessional and inappropriate he does not say that he regrets his actions. The QCT argues that the Tribunal should consider the absence of remorse. However, in BJH’s letter ‘To whom it may concern’,[12] he states:
I do wish to make it knows to the QCT and QCAT that the comments made by [Student 2 and Student 3] were extremely eye opening for me in regards to my behaviour and how I presented myself. I had not, until reading the interviews, fully realised the extent to which my actions have hurt others and I have used their comments on my character, and the effect I had had on the health and mental well-being of these students, in particular as a basis on which to start further counselling with a psychologist.
- [34]The Tribunal considers that this statement shows some insight on BJH’s part of the effect of his behaviour on Students 2 and 3 but not in respect of his behaviour involving Student 1, which was, in the Tribunal’s view, the most serious conduct. There is no evidence before the Tribunal regarding BJH’s involvement at any time in psychological counselling linked to any of the behaviour considered in this case.
- [35]In this case, as BJH does not intend to return to the profession, has not again sought registration since his registration was cancelled and has not taught since February 2012, the Tribunal considers that any order in this case should reflect more of a general deterrence based on the conduct being considered than a specific deterrence.
- [36]The Tribunal also considers it appropriate to take into account that the events which give rise to the current application occurred around the same time as the conduct considered in the previous Tribunal decision. This is not a case where the teacher has been the subject of disciplinary action due to particular conduct and then, at a later time, engaged in further conduct that falls short of the expected standard.
- [37]In determining the appropriate order/s in this case, the Tribunal considered what disciplinary action would have been appropriate had all of the conduct been considered at the one time. Based on the comparative cases, in particular, Fields, Clough and Teacher ABC, the Tribunal considers that the appropriate order would have been to cancel BJH’s registration and, prohibit BJH from reapplying for registration or permission to teach for a period of six years. The Tribunal considers that the seriousness of the conduct involving Student 1 and the number of inappropriate communications made by BJH over an extended period warrants such a prohibition period. Had that been the decision at the time of the earlier decision, the period from which BJH would have been prohibited from reapplying for registration or permission to teach would have run to 4 December 2018.
- [38]Taking all of the outlined circumstances into account, the Tribunal considers that the appropriate order, under s 161(2)(c) of the Act, is that BJH be prohibited from reapplying for registration or permission to teach until 5 December 2018.
- [39]The QCT urged the Tribunal to make an order that a particular notation or endorsement about the teacher be entered in the register pursuant to s 161(2)(d) of the Act. The QCT submitted that the particular notation should be in the same terms as previously ordered by the Tribunal. The Tribunal accepts that submission as appropriate in all the circumstances with two minor amendments. The Tribunal orders that both decisions of this Tribunal and both statements of agreed matters must be provided to any psychologist who might, in the future, be engaged to provide a report.
Non-publication order
- [40]The Tribunal has the power under s 66 of the QCAT Act to prohibit the publication of information that might enable a person or people such as the former students to be identified in circumstances where it would not be in the interests of justice to identify their names.
- [41]The conduct here involves inappropriate social media contact, as well as sexual contact with Student 1. There is no public interest to be served by disclosing the names of the former students. Publication of the name of the school may make it possible to identify the students involved in the incidents. The Tribunal therefore prohibits the publication of the names of the former students and the name and address of the school attended by the former students where BJH was employed as a teacher.
- [42]BJH applied for a non-publication order in relation to his own name. In the previous decision, his name was published. In this case, BJH argues that his name should not be published because:
- a)His unusual name, by association, will lead to the identification of Student 1 as former students remain in contact.
- b)Publication will have negative implications for his immediate family, in particular, his brother and sister-in-law to be who is a teacher and her professional standing will be unfairly tarnished. His family members will suffer or again suffer from publication of his name.
- c)Publication of his name will adversely affect his ability to find work as employers who ‘google’ his name will be made aware of both Tribunal decisions.
- a)
- [43]The QCT considered that his argument regarding the potential impact on the professional standing of his sister-in-law to be was the most compelling. The QCT did not oppose the application for a non-publication order on those grounds. The QCT submitted further that it was a matter for the Tribunal whether it wished BJH to file material from the sister-in-law to be in order to support his assertions regarding the potential impact of publication of the teacher’s name.
- [44]The conduct considered in this case is more serious than that considered in the previous decision. BJH submits that publication of his name together with the nature of the complaint will enable other former students to identify Student 1. Student 1 has health concerns and the nature of the improper conduct involving Student 1 is extremely personal. For those reasons, the Tribunal considers it paramount, in the interests of justice, to protect the identity of Student 1. If there is any chance that publication of the teacher’s name would identify Student 1 then his name should not be published. Given the unusual name of the teacher and the details of the conduct provided in these reasons, the Tribunal has decided to err on the side of caution and order that the teacher’s name not be published on this occasion. In so doing, the Tribunal considers that the de-identified decision will still have the appropriate deterrent effect, as it will be clear that the type of behaviour considered in this decision is of serious concern and warrants action of the type ordered.
- [45]The Tribunal observes that, in the circumstances of this case, it does not consider that the potential detrimental effect on the professional standing of the sister-in-law to be would, of itself, be sufficient to outweigh the deterrent effect of publication of the teacher’s name in connection with the conduct and hence the public interest in deterring others from acting unethically.
Footnotes
[1] Statutory Declaration singed 6 February 2014; Letter to whom it may concern dated 27 May 2015.
[2]Queensland College of Teachers v Kyei [2012] QCAT 225 at [16].
[3]Queensland College of Teachers v Armstrong [2010] QCAT (OCR010-10) (Unreported) at [33].
[4]Queensland College of Teachers v Genge [2011] QCAT 163 at [14].
[5] [2010] QCAT (OCR010-10) (Unreported).
[6] [2012] QCAT 491.
[7] [2010] QCAT (OCR032-10) (Unreported).
[8] [2011] QCAT 125.
[9] [2011] QCAT 163.
[10] [2012] QCAT 56.
[11] Statutory declaration of the respondent sworn 6 February 2015 at p 3.
[12] Letter to whom it may concern dated 27 May 2015.