Queensland College of Teachers v RTM
[2016] QCAT 501
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- Unreported Judgment
- Queensland College of Teachers v RTM[2016] QCAT 501
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Queensland College of Teachers v RTM[2016] QCAT 501
Queensland College of Teachers v RTM[2016] QCAT 501
CITATION: | Queensland College of Teachers v RTM [2016] QCAT 501 |
PARTIES: | Queensland College of Teachers (Applicant) v RTM (Respondent) |
APPLICATION NUMBER: | OCR061-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 20 December 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Kanowski, Presiding Member Member Jones Member Macdonald |
DELIVERED ON: | 23 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | Teacher disciplinary matter – where sexual relationship between teacher and student – whether suitable to teach – whether costs sanction appropriate Education (Queensland College of Teachers) Act 2005 (Qld) s 3, s 12, s 92(1)(h), s 160 Queensland College of Teachers v Limpus [2011] QCAT 99 Queensland College of Teachers v WAS [2015] QCAT 61 |
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
Background
- [1]This case is a disciplinary referral by the Queensland College of Teachers in relation to a male teacher who is now aged 36. The referral was made because the teacher had an over-familiar and ultimately sexual relationship with a senior female student whom we shall call S. The relationship continued for several months after S finished school.
Existing non-publication order
- [2]We have not named the teacher or the student because on 17 November 2016 QCAT ordered that identifying details are not to be published. The non-publication order also extends to other student witnesses, the teacher’s wife and the school in question.
Legislation
- [3]Disciplinary proceedings are brought under the Education (Queensland College of Teachers) Act 2005 (Qld). The Act has recently been amended but references below will be to the Act as in force at the time of the disciplinary referral in May 2016.
- [4]The referral contended that the teacher is not suitable to teach. In considering suitability to teach we must consider whether the teacher is suitable to work in a child-related field.[1] A person who behaves in a disgraceful or improper way that shows that he or she is unfit to hold teacher registration is not suitable to teach.[2] Suitability is to be assessed as at the date of the QCAT hearing.[3]
- [5]Where a disciplinary ground is established, section 160 of the Act provides for a range of possible sanctions.
Is the teacher not suitable to teach?
- [6]S told some of her friends about the relationship during her schoolies’ week. The relationship became known through social media amongst the wider group of recently-graduated students. One of them reported it to the school in early 2016. An investigation commenced. The teacher denied the allegations to the school and in formal interviews. S was interviewed a number of times. Initially she denied anything beyond a teacher-student relationship. When re-interviewed on two occasions and confronted with more evidence gathered by investigators, S gradually revealed more about the relationship. However, she still denied that it had become sexual prior to graduation.
- [7]Investigators accumulated a substantial body of circumstantial evidence mostly in the form of phone records, text messages between the teacher and S, Facebook communications between S and her friends, and interviews with some of S’s friends.
- [8]In April 2016 the teacher resigned from his teaching position. His teacher registration has been suspended by the College since 6 May 2016.
- [9]At an early stage in the disciplinary proceeding in QCAT, the teacher’s solicitors advised the College and QCAT that the teacher did not seek to contest the referral, that he would relinquish his teacher registration, and he would abide by the orders of QCAT.
- [10]The College’s written submissions usefully recite the relevant facts, and we will summarise them here.
- [11]The teacher has been registered since late 2004. He taught S in year 11 (in 2014) but not in year 12 (in 2015). From March 2014 the teacher’s relationship with S became over-familiar. For example he gave her gifts such as sweets on a number of occasions. The teacher was permitted to email students for educational purposes but in emails with S he also discussed their home lives and he used nicknames for himself and S. This can be contrasted to emails he sent to groups of students where he used his title and surname. This over-familiarity with S was a prelude to the later intimate relationship. The communication was not explicitly sexual but it involved some crude banter of the type often seen between teenagers. With the benefit of hindsight, the teacher’s conduct during this phase must be seen, in part at least, as a testing of the waters for a possible later sexual relationship.
- [12]The student turned 18 in early October 2015, near the end of her final year of school. At that time the teacher was aged 35. Soon after the student’s birthday, the relationship escalated. The teacher sent S his phone number in a coded form. The teacher and S went on to exchange a very large number of phone calls and text messages, many of them sexually explicit. They met for intercourse or other sexual activities on at least five occasions before the student graduated. Some of the sexual encounters occurred at school during school hours, others in a park, and others at the teacher’s home. At the end of the school year the teacher left an envelope at the school office for the student. He told staff it contained a reference but in fact it contained $200 for the student to spend at schoolies’ week. The teacher and the student continued the affair after the school year ended, and until April 2016. This phase included the teacher absenting himself from school one day during schoolies’ week (while the younger students were still attending) to collect the former student to take her to his home for sex.
- [13]The teacher took many steps to hide the relationship from the school and his wife. For example he saved the student’s number in his phone under other names in an effort to prevent detection by his wife. He left a family holiday to spend a night with S at his home, telling his wife he was going to see a movie with a fellow teacher. He asked that teacher to lie for him if necessary by saying they had gone out to the movie. He told the other teacher that he needed an alibi because he was actually planning a surprise birthday party for his wife.
- [14]The account of events summarised in the above three paragraphs is uncontested. It is corroborated to a significant extent by the emails and other records. We accept that account of events.
- [15]The College submits that there are a number of serious features. The teacher was experienced and significantly older than S. He distracted her from her senior schooling by communicating with her at length about sexual matters during school hours, and by causing her to skip classes so they could meet up. He deceived the school and his wife. When S’s former classmate came to the school to report the matter (and the teacher was aware that she was planning to do so) he offered to speak to that girl, no doubt in an attempt to dissuade her. (He did not actually speak with her at that time as a colleague declined his offer). When the investigation began, the teacher adopted a practice of phoning S from public phones (to avoid tracing) to tell her how to respond to questions from authorities so as to hide the nature of the relationship. He lied when he was questioned by investigators. He has decided not to contest the matter in QCAT, the College contends, only because it must have become clear to him that the evidence against him is overwhelming. His conduct and lack of initial cooperation has resulted in a protracted investigation and the need to re-interview S. The teacher has not acknowledged the wrongness of his behaviour. Meanwhile, the teacher violated several aspects of the Code of Ethics for Queensland teachers by not maintaining appropriate professional relationships, abusing trust, and not giving priority to the education and welfare of students.
- [16]The community expects teachers to conduct themselves professionally and to maintain appropriate distance from students. Teachers are expected to be good role models for students. Clearly the conduct of the teacher in late 2015 fell well below the expected standards. He was not suitable to teach at that time. There is nothing before us to suggest that the teacher is now a reformed character. His election not to contest the referral does not necessarily point to insight or remorse. It may simply reflect, as the College submits, a recognition on the teacher’s part that the evidence against him is overwhelming. We find that the teacher remains not suitable to teach.
What disciplinary action should be taken?
- [17]As the College submits, the purpose of disciplinary action is not to punish teachers. It is to further the objects of the Act which 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] Deterrence – specific to the teacher in question and general to the profession – is a relevant consideration.
- [18]The College submits that the teacher’s registration should be cancelled, that he should be prohibited from re-applying for registration for eight years, that he should be required to pay $5,000 in costs, and that there should be certain pre-requisites to any future application for registration: completion of a course in professional boundaries and ethics, and a satisfactory psychological report demonstrating understanding of appropriate behavioural norms in relating with children and associated matters.
- [19]All of these sanctions are available under section 160, and in respect of most of the proposed sanctions we have no hesitation in accepting that they are warranted. Clearly the teacher’s registration should be cancelled and there should be a substantial period before he is permitted to return to the profession. A significant period is required for its deterrent effect. Additionally, the teacher needs time to gain insight. His conduct demonstrated a lack of regard for how his behaviour could harm the student in a variety of ways including through poor role-modelling, embarrassment amongst her peers, and divided loyalties. When the investigation began the teacher did not show remorse. Instead he lied to authorities and he encouraged S to do likewise. This would have placed her under tremendous pressure. There are indications in the material that she became acutely uncomfortable by being interviewed.
- [20]There is also merit in the College’s suggested pre-requisites to any future application for registration. These will help to ensure that the teacher can re-enter the profession only if he has demonstrated a mature understanding of his responsibilities as a teacher, the need to protect rather than exploit students, and so on.
- [21]The College seeks a contribution of $5,000 towards its costs in the proceeding. It does not seek a contribution towards its investigatory costs. We do not have any evidence of the amount of costs the College has incurred but it is highly likely that the costs in the proceeding would exceed $5,000. It can be safely assumed that the combined investigatory and proceeding costs would vastly exceed $5,000. As the College points out, it is funded through teachers’ registration fees. It is appropriate to require the teacher to make a costs contribution in order to ease the burden on teachers generally, the vast majority of whom conduct themselves responsibly. We do not have any information on the current financial circumstances of the teacher. It is reasonable to allow him 12 months to pay the contribution, in case he is in financial hardship.
- [22]The difficult question is the length of the period of exclusion from the profession. As we have mentioned, the College suggests eight years. It has referred in detail to two previous cases which are broadly comparable.
- [23]The first is Queensland College of Teachers v Limpus.[5] It involved a young teacher in her first year of teaching who had sexual intercourse on a single occasion with a current student: a boy aged under 16. When questioned, she denied that the incident occurred. She did not participate actively in the QCAT proceeding but nor did she concede. The teacher was excluded for five years, which at that time was the maximum period.
- [24]The second is Queensland College of Teachers v WAS.[6] It involved a male teacher who had a close relationship with a 16 year old current female student across a three month period, including sexual intercourse on at least three occasions. The teacher was excluded for six years.
- [25]The College submits that the present case is more serious than Limpus and WAS. The College points to factors in the present case such as the longer period over which professional boundaries were blurred, the higher level of deceit, that sexual encounters occurred during school time and at the teacher’s house, the teacher absenting himself from school on a pretext in order to meet up with the student, and the conduct of the teacher during the investigation in not only lying but also encouraging the student to lie. His lack of cooperation in the investigation led to witnesses being put through the stress of being re-interviewed.
- [26]We accept that these are aggravating features.
- [27]Additionally, the College notes that the teacher in the present case was an experienced teacher, unlike the teacher in Limpus. On the other hand, we note that the teacher in Limpus was less cooperative in the disciplinary proceeding. In contrast, the teacher in WAS was cooperative in the investigation.
- [28]There are some features relied on by the College that we do not regard as especially significant. One relates to the fact that the teacher’s wife also taught at the same school. The College submits that the teacher’s engaging in a sexual relationship with a student at the same school that his wife taught at is a feature that makes the conduct more serious than the conduct in the other cases. That factor does highlight the brazenness of the teacher’s conduct and does not reflect well on his character. However, beyond that it is not particularly relevant to his conduct as a teacher in our view.
- [29]Also, the College submits that the interference which S’s schooling came at “the most critical time in her schooling, Term 4 in year 12”. While we accept that the final term of a student’s schooling is important in their academic and social development, we do not accept that the final term is necessarily “the most critical time” in the sense that it may have been in an era when assessment was based on end-of-year exams.
- [30]We note that the teacher in WAS was a little older than the teacher in the present case. There was also a large volume of phone and text messaging in WAS, as in the present case. It is also important to keep in mind that the student in the present case was significantly older when the sexual activity started than the students in the other cases, although the preparatory conduct in the present case started when S was 16. There was of course a power imbalance between the teacher and S, but she did not have the added vulnerability that the student in WAS, who had shared with the teacher her history of being sexually abused, had.
- [31]It is difficult to rank cases in terms of seriousness because each case involves a matrix of circumstances. Overall, though, we do see the present case as involving more serious conduct than that in Limpus and WAS, particularly because of the duration of the boundary violations and the encouragement of dishonesty in the student. Further, while there will almost inevitably be deceit involved in cases where teachers engage in sexual relationships with students, the level of deceit in the present case was especially extensive. This of course reflects very poorly on the teacher’s trustworthiness. We are therefore inclined to impose a longer period of exclusion in the present case. Taking into account, though, the ages of the children in the other cases, we do not regard the present case as so much more serious as to warrant eight years’ exclusion. Rather, we believe that seven years is appropriate.
Conclusion
- [32]We will impose sanctions largely in the terms sought by the College, subject to the period of exclusion being seven rather than eight years.