Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2017
  4. Queensland College of Teachers v SEF - [2017] QCAT 55

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Queensland College of Teachers v SEF[2017] QCAT 55

Queensland College of Teachers v SEF[2017] QCAT 55

CITATION:

Queensland College of Teachers v SEF [2017] QCAT 55

PARTIES:

Queensland College of Teachers

(Applicant)

v

SEF

(Respondent)

APPLICATION NUMBER:

OCR210-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

6 December 2016

HEARD AT:

Brisbane

DECISION OF:

Member Guthrie

Member MacDonald

Member McLennan

DELIVERED ON:

20 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. A ground for disciplinary action is not established.
  2. The suspension of SEF’s teacher registration is ended.
  3. The referral of the Queensland College of Teachers is dismissed.
  4. Publication of the following information to any person, other than the parties to the proceeding and then only for a purpose connected with the proceeding, is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld):
    1. The name of the teacher or any other information that would identify the teacher, the subject of this disciplinary proceeding;
    2. The name of the school or any other information that would identify the school referred to in this disciplinary proceeding;
    3. The name/s of the students or former students or any other information that would identify the students or former students referred to in this disciplinary proceeding;
    4. The names of the staff members or former staff members of the school or any other information that would identify the staff members or former staff members referred to in this disciplinary proceeding;
    5. The names of the parents of the students or former students or any other information that would identify the parents of the students or former students referred to in this disciplinary proceeding;
  5. The non-publication order extends to the contents of all documents produced to the Tribunal and the evidence given before the Tribunal.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where referral by the Queensland College of Teachers to the tribunal – where tribunal is a disciplinary committee for determining whether a ground for disciplinary action against a teacher is established

EDUCATION – SCHOOLS – OTHER MATTERS – where teacher’s teacher registration suspended due to criminal charges – where teacher acquitted of charges - where primary school teacher admitted kissing student on the cheek – where primary school teacher agreed he had had inappropriate physical contact with students – where teacher agreed he had made inappropriate comments - whether a ground for disciplinary action is established – whether teacher is “not suitable to teach” within s 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) as at the date of the hearing

Education (Queensland College of Teachers) Act 2005 (Qld) s 3, s  12, s 48, s 92, s 159, s 290, Schedule 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld) s 167, Schedule 2

Briginshaw v Briginshaw (1938) 60 CLR 336

Queensland College of Teachers v Armstrong [2010] QCAT 709, applied

Queensland College of Teachers v CMF [2016] QCAT 137, followed

Queensland College of Teachers v CMF (No.2) [2016] QCAT 290, followed

Queensland College of Teachers v RCJ (No 2) [2015] QCAT 540, applied

Queensland College of Teachers v Smith [2011] QCAT 704, considered

APPEARANCES:

 

APPLICANT:

Queensland College of Teachers

RESPONDENT:

SEF

REPRESENTATIVES:

 

APPLICANT:

represented by Mr C Lloyd, Principal Legal Officer, Queensland College of Teachers

RESPONDENT:

represented by Mr L Dollar of Counsel instructed by Holding Redlich

REASONS FOR DECISION

  1. [1]
    SEF is a ‘relevant teacher’ under the Education (Queensland College of Teachers) Act 2005 (Qld) (the Act). SEF’s teacher registration was suspended when he was charged with a ‘serious offence’[1]. On 8 August 2014, this tribunal continued the suspension upon referral by the Queensland College of Teachers (the QCT).[2] At the time of the decision to suspend his teacher registration, SEF was a teaching Principal. He taught a composite class of students in years 4 to 7 at a small, rural school.
  2. [2]
    The criminal proceedings relating to the ‘serious offence’ was finalised by way of acquittal of SEF on 27 October 2015. The QCT examined the circumstances of the criminal charges and decided only to pursue one allegation that was the subject of a criminal charge. For a number of reasons the QCT decided not to proceed with other allegations that were the subject of the criminal charges. Those reasons included inconsistencies between the evidence of the students, the degree of recollection by other witnesses about conversations and dates and the further passage of time between the incident occurring, the criminal proceedings and now the Tribunal hearing. The QCT in reaching this conclusion had examined the documents produced to the Tribunal by the Director of Public Prosecutions.[3]
  3. [3]
    On 23 November 2015 the Executive Manager, Discipline and Appeals, QCT approved the referral of the matter to the Tribunal. The referral has been amended. It is the further amended referral that the Tribunal has considered.[4] The referral comprises 10 allegations relating to events which occurred in 2013 and 2014. In summary it is alleged that the teacher has engaged in inappropriate physical contact with students aged 9 and 10 years of age. Only one of the allegations relating to inappropriate physical contact was the subject of a criminal charge.[5] It is also alleged that SEF has made inappropriate comments.

The role of the Tribunal

  1. [4]
    The powers and functions of the tribunal in conducting proceedings in these matters are set out in Chapters 5 and 6 of the Act.
  2. [5]
    The objects of the Act are set out is s 3 and include to uphold the standards of the teaching profession, maintain public confidence in the teaching profession and to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers. Those objects are mainly achieved by the QCT having functions and powers about, amongst other things, taking disciplinary action against approved teachers and monitoring compliance with and enforcing the Act.[6]
  3. [6]
    The QCT submits that a ground for taking disciplinary action against SEF is established under s 92(1)(h) in that SEF is “not suitable to teach”.[7] Section 92(2)(a)(i) also makes it clear that, as is the case here, a ground for disciplinary action mentioned in s 92(1)(h) is taken to apply to a relevant teacher whose registration is suspended under s 48, if the teacher has been charged with a serious offence and the charge has been dealt with. Section 92(3) of the Act explains that the object of s 92(2)(a) is to ensure the circumstances of the charge are examined by a disciplinary committee. This tribunal is a ‘disciplinary committee’.[8]
  4. [7]
    The parties filed a statement of agreed facts and disputed matters. Later the tribunal was informed that certain of the disputed matters were no longer in issue.
  5. [8]
    The Tribunal conducted an oral hearing at which SEF gave evidence as did a former staff member at the relevant school. Both witnesses were cross-examined. The Tribunal has carefully considered the oral evidence, the documentary evidence tendered by the parties and the submissions made both orally and in writing by the parties.
  6. [9]
    Essentially, SEF says that, as at the date of the hearing, the ground for disciplinary action, that he is not suitable to teach, is not established. In Queensland College of Teachers v CMF[9], the Tribunal determined that the time for assessing ‘unsuitability to teach’ was at the date of the hearing and that s 92(2) did not apply so as to deem the teacher ‘unsuitable to teach’.[10]

Issues for determination

  1. [10]
    The issues for determination by the Tribunal are:
    1. Whether a ground for taking disciplinary action against SEF is established and, if so,
    2. The appropriate sanction.

Non-publication order

  1. [11]
    Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), the Tribunal may make an order prohibiting the publication of the contents of a document or other thing produced to the tribunal; evidence given before the tribunal; and information that may enable a person who has appeared before the tribunal, or is affected by a proceeding to be identified.
  2. [12]
    The Tribunal may, in its discretion, make an order under s 66(1) only if the tribunal considers it necessary for particular stated reasons which include to avoid the publication of confidential information or information whose publication would be contrary to the public interest[11] or for any other reason in the interests of justice[12].
  3. [13]
    In this case, the students named in the referral would still be within the education system. Given the personal nature of the allegations against the teacher, we consider that publication of any information that would be likely to identify the children would be contrary to the public interest. Based on the particular facts of this case and the material that has been filed in the Tribunal, information that would be likely to identify the children would extend to the name of the teacher, the name of the school, the names of the students, their parents and the names of any staff or former staff of the school.
  4. [14]
    The names of the witnesses as well as the names of the students would appear in the transcript of the tribunal hearing. Therefore, we consider that the non-publication order should extend not only to the documents produced to the tribunal but also to the evidence given before the Tribunal.
  5. [15]
    The Tribunal orders that the publication of the following information to any person, other than a party to the proceeding and then only for a purpose connected with the proceeding, is prohibited pursuant to s 66(2) of the QCAT Act:
    1. The name of the teacher or any other information that would identify the teacher, the subject of this disciplinary proceeding;
    2. The name of the school referred to in this disciplinary proceeding or any other information that would identify the school;
    3. The name/s of the students or former students referred to in this disciplinary proceeding or any other information that would identify the students or former students;
    4. The names of the staff members or former staff members of the school referred to in this disciplinary proceeding or any other information that would identify the staff members or former staff members;
    5. The names of the parents of the students or former students referred to in this disciplinary proceeding or any other information that would identify the parents of the students.
  6. [16]
    This order extends to the contents of all documents produced to the Tribunal and the evidence given before the Tribunal.
  7. [17]
    As a result of these orders, the witnesses who gave evidence at the hearing cannot be identified in these reasons.

Standard of proof

  1. [18]
    The applicable standard of proof is the civil standard, the balance of probabilities, with the degree of satisfaction varying according to the gravity of the fact to be proved.[13]

Findings of fact regarding the allegations made in the referral by the QCT

  1. [19]
    The parties have agreed on many of the facts of this case including most of the facts which form the basis of the 10 allegations which form the basis of the referral. There is one allegation that is wholly in dispute.
  2. [20]
    Relevantly for these proceedings it is agreed that SEF last completed DET student protection training, Code of Conduct Training and Standard of Practice Training in January 2014. Therefore, at the time of the alleged incidents, he was aware of the appropriate standards for the profession and the protection of students.
  3. [21]
    The most serious allegation in this case is allegation 7. It was the subject of a criminal charge of which SEF was acquitted. We will deal with that allegation first.
  4. [22]
    It is agreed that SEF put his arm around a year 6 student and kissed her on the cheek but the contact was not violent or sexually motivated and not associated with any inappropriate comments. The teacher says it was a congratulatory kiss but accepts it was inappropriate.[14] The QCT says it does not know the context of the kiss (allegation 7). It is agreed that this occurred on or about 28 May 2014 and followed the first meeting of the student council which included the election of the student to the council. Two days later, SEF apologised to the student for the kiss (allegation 8).
  5. [23]
    In his oral evidence, SEF accepted that he had kissed the student on the cheek. He said that the student had been struggling with her school work and was 18 months behind in her academic progress. He said that he was as excited as she was that had been elected to the student council. He accepted that the kiss was inappropriate.
  6. [24]
    SEF admits to forming close personal relationships with the students and some of the students’ families. He considered it important to become part of the local community. He has admitted to engaging with students as he would engage with his own grandchildren.[15] He has also stated to DET investigators: ‘unfortunately the lines get blurred in a small school, you fill in, you almost become a de-facto parent in some cases for students at the school.’[16]
  7. [25]
    Staff of the school had witnessed physical contact between SEF and the students, there being no attempt by him to conceal the behaviour.
  8. [26]
    Based on the totality of the evidence, we do not consider that there is sufficient compelling evidence before us upon which we can be satisfied to the requisite standard that the kiss was other than as agreed between the parties, not violent or sexually motivated. However, we find the kiss to have been voluntary on the part of SEF.
  9. [27]
    We also find that as SEF apologised to the student two days later, he quickly realised the inappropriateness of his behaviour.
  10. [28]
    In relation to the balance of the agreed facts, we have carefully considered the evidence before us and we are satisfied that the facts as agreed between the parties are consistent with the evidence. Therefore, we formally make findings of fact in accordance with the agreed facts set out in the statement of agreed facts and disputed matters.[17] We have made further findings of fact as we consider appropriate to determine this matter and made findings of fact in relation to the disputed allegation. 
  11. [29]
    It is agreed that SEF engaged in physical contact with female students which was inappropriate and not reasonable in the circumstances but was not violent or sexually motivated and was not associated with any inappropriate comments and took place in the presence of others and was in the context of a game or playing with a group of students by:
  • Pulling a year 3 student between his legs while seated (allegation 1);
  • Attempting to bring a student, aged approximately nine years, onto his lap and tickle her on the torso area and around and under her arm (allegation 4).
  1. [30]
    It is agreed that SEF engaged in physical contact with a female student that was inappropriate and not reasonable in the circumstances but which was not violent or sexually motivated and was not associated with any inappropriate comments by, patting/tapping the student on her mid-thigh (allegation 3).
  2. [31]
    It is agreed that SEF made inappropriate comments in relation to female students:
  • On school parade, when referring to a new student used words to the effect ‘the boys would love having this blonde, beautiful girl in the classroom’ (allegation 2).
  • During class to male students in the composite class, ‘What are you boys up to, you trying to work out which of these blonde bombshells you’re going to date?’ (allegation 9).
  • Stated to the parents of a female student that the student and another named female student were ‘little princesses’ (allegation 9).
  • Stated to the same parents that he ‘knew what the kids were like and that every now and then he gives them a cuddle to let them know they are cared for’ (allegation 9).
  • To a staff member stated that two, named, female students would be ‘prime targets for predators because they are blonde and good looking’ (allegation 9).
  1. [32]
    In relation to the statement on school parade, SEF says he was repeating a comment made to him by a parent of a male student. The QCT says it does not know whether he was repeating what another person said or not. In our view, in the circumstances of this case, nothing turns on whether SEF repeated comments made by a parent or the comments were his own. It is accepted and we have found that they were inappropriate comments. He conveyed the comments to those present at the school parade including staff of the school, primary school children and some of their parents.
  2. [33]
    SEF should have known the comments were inappropriate in that forum and not made them. Further, if he was repeating comments made to him in a private conversation with a parent of the school, he did not have to, nor should he have, repeated them in that forum. We make no finding of fact in respect of the origin of the comments.
  3. [34]
    In relation to the reference to particular students being prime targets for predators, it is agreed that SEF had previously had a visit from a police officer regarding reports of a prowler in the local area and that the prowler had been seen in the family yard of one of the students. The students referred to lived in close proximity to each other.
  4. [35]
    SEF agrees that, in 2014, a teacher and a teacher aide cautioned him about his physical interactions with children based on their observations of the behaviour (allegation 5). The specific date on which this conversation occurred is not agreed but the QCT now says that it is unnecessary for the Tribunal to make a specific finding as to the date this occurred as nothing turns on it. The QCT does not argue that the date is significant. For reasons that follow, we do not consider that the outcome in this matter would be any different whatever date this conversation took place. We make no finding as to the specific date in 2014 that this conversation occurred between SEF and his colleagues.
  5. [36]
    Allegation 6 is the only allegation that is wholly in dispute. The QCT alleges that, on a date between 27 January 2014 and 14 June 2014, SEF engaged in physical contact with a female, year 4 student that was inappropriate and was not reasonable in the circumstances, namely, holding the student upside down by her ankles. It is alleged that the incident was witnessed by a teacher aide and that SEF said to the teacher aide words to the effect ‘Do you want a free tickle [name of witness]?’ and that the witness replied words to the effect ‘No I think you should put her down before you drop her on her head’.
  6. [37]
    The teacher aide who says she witnessed the incident gave evidence at the hearing. She has previously provided a statement to police on 17 September 2014,[18] been interviewed by DET on 18 February 2016[19] and provided a statutory declaration dated 22 August 2016.[20]
  7. [38]
    The teacher aide gave evidence that SEF was the teacher on playground duty that day. She agreed that the incident took place in a very public space and that there was no attempt by SEF to conceal the incident. She was able to say the approximate time it occurred, about 11:25 am towards the end of lunch break time. She said she walked out earlier than the bell. Consistently with her various statements, she said she walked out into the playground and saw SEF holding the year 4 student by the ankles. She said that one of his hands was on each of the student’s ankles. The student was being held above the ground by her ankles and away from SEF’s body so that no part of her body was touching the ground. She was able to identify the student by name and said she was adamant that she had correctly identified the student and the incident happened as she described.
  8. [39]
    In cross-examination, the witness said she was not good at estimating weight but said that the student was of average build for a child aged nine or 10 years and suggested she weighed perhaps 30 to 35 kgs.
  9. [40]
    Counsel for SEF, put to the witness that the student’s name did not appear in the police statement. It was put to her that her identification of the student was a recent addition and something of which she did not have any independent recollection. The witness said she told the police officer the name of student at the time. She offered that perhaps the police officer with whom she spoke had not put it in the statement. She recalled the discussion with the police officer because there were in fact two students with the same first name and she wanted to clarify with the police officer the full name of the relevant student. She said she reported the incident to another teacher at the time but conceded she had not reported it to the student’s parents.
  10. [41]
    In his written statement SEF denies allegation 6. He states:

…I simply do not remember ever holding a student upside down by their ankles and it is just not something I would deliberately do.

  1. [42]
    In his oral evidence, SEF said he could not recall the incident. SEF said that students were discouraged from doing handstands or cart wheels at school. SEF said he had held the ankles of students who were doing cartwheels or handstands to assist the students safely to the ground. In cross-examination, he said it was possible the incident described by the witness could have happened.
  2. [43]
    It was submitted on behalf of SEF that the witness’s evidence was not reliable as it was unlikely that SEF could hold a 35 kg child by the ankles, off the ground and away from his body. Further, it was submitted that the witness’s failure to name the student in her police statement indicated that her recollection of the event was not clear at the time of her earliest statement. It was further submitted that as the later statements became more specific, naming the student that the content of those later statements were not a product of the witness’s independent and accurate recollection of the event. 
  3. [44]
    In our assessment, the teacher aide’s evidence was consistent with all the statements she has made about the incident. Her first statement was made on 17 September 2014, within eight months of the earliest date on which this incident could have occurred.[21] We consider that at that time, the  event would still have been within her clear recollection. The fact that the student’s name is not recorded in the police statement does not cause us to doubt the veracity of the witness’s early statement. She explained in her evidence and we accept that she told the police officer the full name of the student around the time the statement was made. The witness was unshaken in her evidence to the Tribunal that the incident occurred as she described. Her statements are not vague. Further, we consider it probable that SEF or any man of average build could hold a child aged nine or 10 years old of average build by the ankles and away from his body as described by the witness.
  4. [45]
    While SEF denied the allegation in his written statement in his oral evidence he was prepared to concede that he had placed his hands on the ankles of students in a handstand position to assist them to the ground and that the event as described possibly occurred. We accept that there is a significant difference between the incident described in allegation 6 and holding a child’s ankles to assist the child safely to the ground. We acknowledge that SEF’s concessions in oral evidence might have been made with the latter conduct in mind. As a result, we have not placed significant weight on what might be considered concessions made by SEF regarding allegation 6.
  5. [46]
    We prefer the evidence of the teacher aide and found it compelling. We are reasonably satisfied, based on her evidence that the incident she described occurred. Allegation 6 as drafted is consistent with the witness’s account of the incident. We make findings of fact in accordance with those set out by the QCT in the statement of agreed facts and disputed matters in relation to that allegation.[22]
  6. [47]
    The QCT submits that if we accept that allegation 6 occurred it is open to the Tribunal to draw an inference that SEF’s conduct was likely to have occurred on other instances in respect of other students. The QCT says that such an inference was drawn in Queensland College of Teachers v Smith where the Tribunal said:

The evidence of the students is consistent in that all reported Mr Smith placing his arm around them. Two students reported that he placed his hand in inappropriate places, namely on the bottom or below the hipbone and accompanied by other hand movements. The details provided by the students are compelling. Each of them describes the occurrences in different ways although there is a similarity to what each alleges. The tribunal considers that if the actions were taken in respect of one of the students, it is likely that they also occurred in respect of the others.

Mr Smith has denied the allegations concerning J, but not responded regarding the allegations regarding H. His denial is in general terms.

The tribunal considers the evidence of the students is consistent, although not so similar as to be something these best friends rehearsed together, and compelling. It accepts their evidence.[23]

  1. [48]
    While we have found allegation 6 established, it relates to a particular student. There is no evidence before the Tribunal that the behaviour of holding a child by the ankles so that no part of their body is touching the ground occurred on any other occasion with the same or any other student. In contrast to the case of Smith, there is no evidence before us from other children stating that that happened to them nor is there any evidence from any witness to such other incidents. SEF admitted to holding the ankles of children to assist them to the ground from a handstand position but that is not the subject of an allegation relied on by the QCT.
  2. [49]
    We do not draw any inference that the behaviour described in allegation 6 occurred with any other student.
  3. [50]
    SEF gave evidence, consistently with his written statement about what had been his ‘hands on’ approach with students which he felt had stemmed from his background in special education, where in order to guide a student away from something, he might have physical contact with the student. He also gave evidence that when he arrived at the relevant school the children were having problems playing together and he had engaged in games with the children to assist this. He acknowledged that he had become involved in the small, local community, getting to know the families personally. The statements of other staff which are before the Tribunal also indicate that that was his approach.[24]
  4. [51]
    In relation to the statement made to parents regarding his ‘cuddling’ students (allegation 9), we have no evidence regarding the context of any cuddling that might have occurred or details of any particular incidents. However based on the agreed facts and SEF’s evidence regarding his interactions with students we are prepared to find that SEF had, in 2013 and 2014, engaged in physical contact with students but otherwise make no specific findings other than those made in relation to the specific allegations of physical contact raised in the referral.
  5. [52]
    For completeness, we note that allegation 10 in the referral states that between 28 January 2013 and 14 June 2014, SEF repeatedly breached his professional boundaries and engaged in a repeated pattern of behaviour or course of conduct that demonstrates that he is ‘not suitable to teach’. The allegation as worded by the QCT then goes on to set out the conduct it relies upon in support of the allegation, why it is a pattern of behaviour and why it establishes the ground for taking disciplinary action.
  6. [53]
    In response, SEF says that allegation 10 is not an allegation but rather a submission. We agree with that submission. The QCT’s argument as detailed in allegation 10 has been considered along with the QCT’s other submissions in determining whether a ground for disciplinary action is established.

Discussion of evidence regarding SEF’s actions during the suspension

  1. [54]
    SEF gave evidence regarding his sessions with psychologist, Ms Anne Skowronski which commenced shortly after he was charged by police. Those sessions are ongoing[25]. He said that at first his sessions were around developing coping skills but they moved onto discussions around professional boundaries. He and Ms Skowronski have discussed the challenges in maintaining professional boundaries in a small school environment. He said he discussed his approach to teaching and with Ms Skowronski areas of focus were identified.
  2. [55]
    SEF’s evidence regarding the focus of those sessions and how that focus changed over time was consistent with the contents of Ms Skowronski’s report of 19 October 2016.[26] The report states that the focus of the sessions has included topics and/or areas of need such as:
  • Beliefs about the role of a principal in relation to support for children and staff in the school situation,
  • Expectations and responsibilities of a Band 5 Principal;
  • Boundaries and perceptions of others, re the Principal role, ‘reflecting on professional boundaries and ethical dilemmas’.[27]
  1. [56]
    In her report, Ms Skowronski has summarised her opinion of SEF’s understanding regarding boundaries:[28]

Professional boundaries define effective and appropriate interaction between professionals and others (staff and students). Boundaries exist to protect both the professional and others.

Professional boundaries need to be observed to ensure that professional standards are maintained. Professional boundaries do not mean the avoidance of another person and their problems. Acting professionally assists you to deliver support to someone to whom you may not like personally. The professional relationship sits between over-involvement and detachment.

One of the difficult ethical dilemmas relates to boundary violation in working relationships. This occurs when a professional forgets that they are in a professional relationship and not a friendship. Once this professional relationship has been lost, there is then potential for the worker to become over-involved with the student/client.

  1. [57]
    SEF said he had also done a lot of his own reading. He was able to provide an example of something he had read, referring to research done by the Department of Education in the Northern Territory which he said forms part of the training of its teachers for rural service. He said the research looked at the complications with professional boundaries in small, rural communities. He said he found it interesting and it provided context for his discussions with his psychologist.
  2. [58]
    SEF recently completed a course on ‘Professional Boundaries’ through Davaar Consultancy, a course previously recommended by the QCT in disciplinary matters.[29]
  3. [59]
    As a result of his reading and counselling, SEF said he would now act differently in his interactions with students. Rather than showing the students how to play, he would be more instructional. He would now congratulate a student with no more than a handshake. If a student attempted to hug him while he was seated, he would stand up to block the hug and extend his hand for a ‘high 5’.
  4. [60]
    In response to a question from the Tribunal, he said that now he would also modify his behaviour in a special education context. He said that through his treatment and training he now realises that areas he thought were grey areas are actually black and white.
  5. [61]
    The QCT submits that as a principal, SEF should be held to a higher standard of behaviour. We were referred to the “Australian Professional Standard for Principals” produced by the Australian Institute for Teaching and School Leadership Limited.[30] The QCT says that the standards are aspirational only. They refer to the three school leadership requirements:
  1. Vision and values
  2. Knowledge and understanding
  3. Personal qualities and social and interpersonal skills.
  1. [62]
    In terms of vision and values the standards reflect that principals lead the development of the vision of the school:

[Principals] are committed to the learning and growth of young people and adults guided by fairness, ethical practice, democratic values and lifelong learning. Principals understand, lead, mediate and serve the best interests of the community. This resonates through the strategic vision, school culture, tradition and positive ethos they seek to promote across the school They insist upon high standards and foster respect across the whole school community.

  • Principals model “learning for life“ through their own professional practice and promote it actively in their interaction with students, staff, families and carers and the wider community.
  • Principals inspire and motivate children and young people, staff and the school community and its partners and set high standards for every learner, including students, staff and self.
  • Principals behave with integrity underpinned by moral purpose. They model values and ethical perspectives in relation to their own and the school’s practice and organisation. …[31]
  1. [63]
    SEF accepted that the principal sets the standard for other staff. We share that view. The principal must model the standard of behaviour for other staff.
  2. [64]
    SEF said he would like to return to teaching and eventually to a role as principal. He acknowledged the need to further hone his skills in the classroom before returning to any leadership role.
  3. [65]
    SEF was open in his evidence regarding his treatment for a depressive illness. He takes medication. SEF acknowledged that his condition has, in the past, been very debilitating but it has improved. The dosage of his medication has reduced since his criminal trial. He said that if he returned to teaching an appropriate plan for his return should be discussed and agreed. He did not consider that his psychological illness or its treatment would impact his abilities in the classroom.
  4. [66]
    SEF has been assessed by Dr Alan Keen, consultant clinical psychologist. Dr Keen reached the following conclusion in his report dated 4 November 2016:

On the basis of my clinical assessment and psychological tests that I administered, [SEF’s] intellectual capacity is within the average level. He does not show significant deficits in his adaptive functions, attention, concentration or memory. Using the DSM-5 criteria his condition meets the criteria for diagnosis of a Persistent Depressive Disorder together with a Generalised Anxiety Disorder. Symptoms of his anxiety and depression appear to be related to the above-mentioned charges, loss of his teaching licence, the financial failure of the business that his ex-partner and he owned and subsequent break down in his relationship with his ex-partner.[32]

Positive factors:

  • There is no history of sex related offences prior to the charges.
  • For most of his adulthood life, he was employed.
  • His IQ is within the average range. Therefore he holds good understanding of the nature of his charges and allegations made against him.
  • No history of drug or alcohol abuse or dependence was reported.
  • Problems in his mood and affect are treatable.
  • He appears to have appropriate understanding of the nature of his charges and allegations made against him.
  • At the time of my interview with the client it appeared to me that he has had a sufficient understanding of the boundaries in dealings and contacts with minors.
  • He has good family support.

Negative factors:

  • He is not in a relationship with a member of opposite sex at present.

Please note there is no classification of “no risk” in relation to sex offences, but as the client was fully cleared of his charges, it appears to me that in absence of any established criminal charges, he is not of risk of involvement in sex related offences.[33]

…Your Question 6: Any recommended treatment relevant to reducing or alleviating any ‘risk of harm’;

My response: Regaining of his teaching licence can potentially improve the client’s sense of well being. At the same time he may benefit from 12 sessions of psychotherapy with emphasis on cognitive behaviour therapy to improve symptoms of his depression and anxiety….[34]

  1. [67]
    SEF has approached a Deputy Principal from another school to act as his mentor should he return to teaching and the teacher has agreed to perform this role.[35]
  2. [68]
    In his statement, SEF expressed remorse for his behaviour:[36]

I am extremely sorry for any distress my actions and words have caused to the children in my care, their parents and my own colleagues.

I have never acted with ill intent but I have acted without a full appreciation of appropriate professional boundaries. I believe this experience and the actions I have taken since then have given me a proper understanding of the correct way to maintain boundaries in the workplace and I will never make these same mistakes again.

  1. [69]
    SEF provided a written undertaking to the Tribunal. The undertaking acknowledges his understanding that the giving of an undertaking is a serious matter. The terms of the undertaking include engaging with his mentor for a period of two school terms from the date he returns to teaching. The undertaking provides for monthly reporting to the mentor, SEF keeping a logbook of those contacts, that he will request the mentor submit reports to the QCT at the end of the first term and second term of the mentoring period and that he will also submit his log book to the QCT at the conclusion of the mentoring period.
  2. [70]
    SEF also undertook to provide the mentor with the Tribunal’s reasons for decision and to advise the QCT of his return to teaching within 14 days of commencement. Further, he undertook to continue his counselling with Ms Skowronski during the mentoring period no less frequently than twice a term during the period. He also provided a statement of intention to continue to take any prescribed medication.
  3. [71]
    The QCT’s written submission refers to SEF’s testimony in the criminal proceedings where it says it is recorded on 15 occasions that SEF categorised his conduct as ‘marginal’ or ‘very marginal’ and similarly did so in his interview with DET investigators on 6 May 2015. The QCT submits that that categorisation involves minimisation of his conduct and is misconceived. The Tribunal notes that that submission was made by the QCT prior to it receiving SEF’s statement detailing the steps he has taken since his suspension to gain insight into his behaviour and its impact.

Further findings of fact

  1. [72]
    SEF has provided objective evidence in support of his oral evidence regarding his counselling and completion of a course. We accept his evidence as truthfully given. The QCT did not contend otherwise. We accept the opinions and conclusions expressed by Dr Keen and Ms Skowronski. The QCT did not require either for cross-examination.
  2. [73]
    Based on the report of Dr Keen and the findings of fact that the physical contact was not sexually motivated or violent and was not associated with inappropriate comments, we are persuaded that SEF is not a risk of harm to children.
  3. [74]
    Based on the evidence of SEF and the report of Ms Skowronski, we find that SEF has developed insight into the inappropriateness of his behaviour and the poor standard he set for other staff of the school as principal. He was able to articulate how he would now handle situations with students to avoid inappropriate physical contact. He acknowledged the importance of the role of principal in setting the standard of behaviour for other staff in the school. He accepted that he is not currently equipped to take on a leadership role and would not seek one. We consider that his insight into his behaviour also reflects an understanding of the important role of principal in the school.
  4. [75]
    We also find that SEF has insight into his psychological health and the limitations it poses on him from time to time. We find he is committed to his treatment both in terms of taking any prescribed medication and attending counselling.
  5. [76]
    We find that SEF understands the seriousness of the undertaking he gave to the Tribunal and consider that he was willing to do so because he understands the importance of engaging a mentor to assist him in a successful return to teaching. That he had already engaged a mentor prior to giving the undertaking evidences that.

Relevant law

  1. [77]
    The establishment of the ground ‘not suitable to teach’ requires consideration of a number of matters under s 12 of the Act. The Tribunal must have regard to the information held by the QCT about the reason for SEF’s suspension and consider whether SEF is suitable to work in a child-related field[37]. The Tribunal may also have regard to any other matter it considers relevant.[38] Section 12(3) provides that without limiting the other subsections of s 12, a person is not suitable to teach if the person:
    1. Behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or
    2. Otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach.
  2. [78]
    The ‘standard of behaviour generally expected of a teacher’ is not defined in the Act. Whether the conduct of a teacher fall short of the standards expected or is improper such that it shows unfitness to teach, involves consideration of community and professional expectations and standards.[39] As to standard expected by the community, this Tribunal has previously stated[40]:

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 of the community; and this is turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers.

  1. [79]
    It is agreed by the parties and the Tribunal accepts that even if it were of the view that the teacher was not suitable to teach at some earlier point in time such as at the date of the referral, the ground for disciplinary action that he is not suitable to teach must exist at the time of the Tribunal’s hearing.

Has a ground for disciplinary action been established?

  1. [80]
    In Queensland College of Teachers v RCJ (No 2)[41] the Tribunal had to determine whether the incidents of physical touching were contrary to the standard of behaviour generally expected of a teacher. In so doing, the Tribunal said that when assessing the incidents of physical touching against the standard of expected behaviour many factors could be considered to establish the context of the interaction[42].
  2. [81]
    In this case, SEF agrees that the physical contact (with the exception of allegation 6 which he denied) was inappropriate and not reasonable in the circumstances. SEF’s apology to the student he kissed reflects his knowledge at the time or very shortly thereafter that his conduct at least in relation to that allegation fell short of the standard of behaviour he had set for himself.
  3. [82]
    We have found allegation 6 proved.
  4. [83]
    In this case, the physical contact was in our view unnecessary. In contrast to RCJ the contact in relation to allegations 1, 3, 4, 6 and 7 was not accidental nor did it relate to valid educational purposes such as behaviour support, management and care of students.[43] All of the contact was voluntary on the part of SEF. Further, we consider that young the age of the children involved to be an aggravating feature of the behaviour.
  5. [84]
    There are a number of allegations that occurred in a six month time frame between 27 January 2014 and 14 June 2014. We accept the submission of the QCT that SEF engaged in a pattern of behaviour of inappropriate physical contact.
  6. [85]
    SEF has made inappropriate comments about female primary school students. The comments the subject of allegations 2 and 9 which focussed on the appearance of the female students were unprofessional and have no place in an educational environment. They set a poor example for the students who heard them.
  7. [86]
    The expected standard should be the standard ‘reasonably’ expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this is turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers. We do not consider that SEF’s pattern of behaviour of inappropriate physical contact with students and inappropriate comments met the expected standard. At the time of the conduct and the suspension of his teacher registration, SEF’s pattern of behaviour fell short of the standard reasonably expected by the community at large and the standard expected by members of the teaching profession.
  8. [87]
    SEF was an experienced teacher, had undergone the necessary training and held a leadership position. He should have known that his behaviour did not meet the expected standard. Indeed, his colleagues cautioned him about his behaviour prior to his suspension. He did not set a good example for the staff of the school.
  9. [88]
    Most of the inappropriate physical contact (with the exception of allegation 7) occurred in a situation where there was a likelihood that the contact would be seen by staff of the school and/or other students. The inappropriate comments were made on school parade, to other staff and students. That much of the conduct was so public supports a finding that, at the relevant time and despite the training he had done, SEF did not understand that his behaviour was not appropriate or reasonable in the circumstances. Therefore, we conclude that at the time of the conduct and the suspension of SEF’s teacher registration, the s 92(1)(h) ground for taking disciplinary action would have been established.
  10. [89]
    However, we must be satisfied that at the date of the hearing, some two and a half years after the suspension decision and a year after SEF’s acquittal on the criminal charges, the ground is established. He has also done further work with his psychologist since his interview with DET.
  11. [90]
    The QCT essentially submits that until such time as SEF returns to teaching and he is tested, the Tribunal cannot be satisfied that he is suitable to teach. The QCT submits that in the absence of a finding that a ground is established, no sanction can be imposed. In this case, the QCT seeks a number of orders including:
    1. That the ground for disciplinary action under s 92(1)(h) of the Act, ‘not suitable to teach’ is established;
    2. That SEF’s registration is suspended under s 160(2)(e) of the Act for a period of 12 months from the date of the order;
    3. That the suspension is wholly suspended under s 160(2)(k) of the Act;
    4. That SEF’s registration is subject to a mentoring condition under s 160(2)(h) of the Act for a period of two school terms (‘the mentoring period’) from the date SEF returns to teaching (‘the teaching date’).
    5. In the event that SEF fails to comply with these conditions, he will be in breach of the condition and his suspension will be enlivened and his registration will be suspended on the register.
    6. SEF must not undertake employment as a Principal or Deputy Principal at a school until satisfactory completion of the mentoring condition.
  12. [91]
    Details of what should occur during and at the end of the mentoring period mirror the terms of SEF’s written undertaking to the Tribunal.
  13. [92]
    The QCT submits that absent such orders there is no adequate protection for students and no personal or general deterrent effect in circumstances where the behaviour of SEF fell short of the expected standard particularly as SEF was a principal of the school and should be held to a higher standard of behaviour. The orders urged by the QCT it says will send a message to principals and teachers that such behaviour is not acceptable.
  14. [93]
    The QCT does not argue that SEF’s psychological condition or any treatment he is receiving for the condition impacts his ability to properly perform the duties of a teacher.
  15. [94]
    SEF submits that it is an incorrect approach to consider the attractiveness of the order sought by the QCT and for that reason find a ground established. The SEF submits that we must be first satisfied that a ground is established on the weight of the evidence as at the date of hearing before sanction can even be considered. SEF submits that the Tribunal cannot be so satisfied.
  16. [95]
    SEF has no previous disciplinary history. The inappropriate physical  contact was not sexually motivated or violent in nature. It was not associated with inappropriate comments. We have found that SEF is not a risk of harm to children. We have found that over the two and a half years since his suspension he has developed insight into the inappropriateness of his past behaviour and expressed remorse for his actions and any negative impact they have caused. It is our view that his level of insight is now sufficient that we are reasonably satisfied that SEF will not engage in such behaviour in the future. We consider that he has insight into his own health and any limitations in that regard. We are satisfied that he is committed to his treatment and to engaging with a mentor as set out in his written undertaking.
  17. [96]
    We considered SEF’s leadership role in relation to whether the conduct fell below the expected standard. In determining that he now has insight into his behaviour we also found that he had insight into the fact that his behaviour fell short of the expected standard for a member of the teaching profession but also that as a principal his behaviour set the standard for  other staff.
  18. [97]
    For those reasons, we conclude that at the date of the hearing, no ground for disciplinary action is established. It is therefore appropriate that pursuant to s 159 of the Act, we end the suspension of SEF’s teacher registration. Further, we dismiss the referral. We consider that this decision is in keeping with the objects of the Act.

Footnotes

[1] Schedule 3 of the Act defines ‘serious offence’ by referring to s 167 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) which in turn refers to Schedule 2 of the Working with Children Act which includes the offence of Indecent Treatment of children under 16 under s 210 of the Criminal Code Act 1899 (Qld).

[2] OCR 133-14: referral dated 24 June 2014.

[3] Exhibit G and see the ‘Submissions of the Queensland College of Teachers’ dated 21 October 2016.

[4] Exhibit Q.

[5] Allegation 7 of the amended referral.

[6] The Act, s 3(2).

[7] As this matter commenced in the Tribunal prior to amendments to the Act which took effect on 8 September 2016, the wording of s 92(1)(h) and s 12(3) of the Act is as stated in the reprint of the Act current as at 7 November 2014.

[8] The Act, schedule 3.

[9] [2016] QCAT 137.

[10] Queensland College of Teachers v CMF (No.2) [2016] QCAT 290 at [10] referring to Queensland College of Teachers v CMF [2016] QCAT 137.

[11] QCAT Act, s 66(2)(d).

[12] QCAT Act, s 66(2)(e).

[13] Briginshaw v Briginshaw (1938) 60 CLR 336.

[14] One of the incidents the subject of criminal charges of which SEF was acquitted.

[15] Exhibit I: Record of Interview with DET Investigators dated 6 May 2015.

[16] Exhibit I: Record of Interview with DET Investigators dated 6 May 2015.

[17] Exhibit X.

[18] Part of Exhibit G: documents provided to the Tribunal by the Director of Public. Prosecutions in compliance with a notice to produce documents issued by the Tribunal.

[19] Exhibit J transcript of interview with DET.

[20] Exhibit U and also see Exhibit O witness drawing.

[21] The incident is alleged to have occurred between 27 January 2014 and 14 June 2014.

[22] See [29] of these reasons and Exhibit X: Agreed statement of Facts and Disputed Matters.

[23] Queensland College of Teachers v Smith [2011] QCAT 704 at [16]-[18].

[24] Exhibits R, S, T, U and V for example.

[25] At the time of the hearing SEF had had 14 sessions with Ms Skowronski.

[26] Exhibit Z attachment 1.

[27] Exhibit Z attachment 1 at p.1 topics numbered 8, 11 and 12.

[28] Exhibit Z attachment 1 p.2.

[29] Exhibit Z attachment 2 receipt for completed course 7 November 2016.

[30] Exhibit Y updated June 2015.

[31] Exhibit Y.

[32] Exhibit Z attachment 3 p.8 “Section 8: Summary and Conclusions”, second paragraph at lines 21 to 28.

[33] Exhibit Z attachment 3 p.9 lines 1-21.

[34] Exhibit Z attachment 3 p.10 lines 43-45 and p.11 lines 1 to 2.

[35] Exhibit Z [32] and attachment 4.

[36] Exhibit Z [39] and [40].

[37] The Act, s 12(1)(b).

[38] The Act, s 12(2).

[39] For example, The Act s 290.

[40] Queensland College of Teachers v Armstrong [2010] QCAT 709 at [33].

[41] Queensland College of Teachers v RCJ (No 2) [2015] QCAT 540.

[42] Ibid at [23].

[43] Queensland College of Teachers v RCJ (No 2) [2015] QCAT 540 at [29] – [33].

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v SEF

  • Shortened Case Name:

    Queensland College of Teachers v SEF

  • MNC:

    [2017] QCAT 55

  • Court:

    QCAT

  • Judge(s):

    Member Guthrie, Member MacDonald, Member McLennan

  • Date:

    20 Feb 2017

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) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Queensland College of Teachers v Armstrong [2010] QCAT 709
2 citations
Jump To
Cite 1 - [2010] QCAT 709
Cite 2 - [2010] QCAT 709
Queensland College of Teachers v CMF [2016] QCAT 137
3 citations
Jump To
Cite 1 - [2016] QCAT 137
Cite 2 - [2016] QCAT 137
Cite 3 - [2016] QCAT 137
Queensland College of Teachers v CMF (No. 2) [2016] QCAT 290
2 citations
Jump To
Cite 1 - [2016] QCAT 290
Cite 2 - [2016] QCAT 290
Queensland College of Teachers v RCJ (No 2) [2015] QCAT 540
4 citations
Jump To
Cite 1 - [2015] QCAT 540
Cite 2 - [2015] QCAT 540
Cite 3 - [2015] QCAT 540
Cite 4 - [2015] QCAT 540
Queensland College of Teachers v Smith [2011] QCAT 704
2 citations
Jump To
Cite 1 - [2011] QCAT 704
Cite 2 - [2011] QCAT 704

Cases Citing

Case NameFull CitationFrequency
Psychology Board of Australia v Watson [2024] QCAT 2282 citations
Queensland College of Teachers v JN [2019] QCAT 2412 citations
Queensland College of Teachers v Teacher CJK [2019] QCAT 1154 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.