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Queensland College of Teachers v Teacher GBJ[2018] QCAT 135

Queensland College of Teachers v Teacher GBJ[2018] QCAT 135

CITATION:

Queensland College of Teachers v Teacher GBJ [2018] QCAT 135

PARTIES:

Queensland College of Teachers

(Applicant)

v

Teacher GBJ

(Respondent)

APPLICATION NUMBER:

OCR003-17

MATTER TYPE:

Occupational Regulation matter

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Ann Fitzpatrick, Member Steve Holzberger and Member Stuart Macdonald

DELIVERED ON:

3 May, 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

It is ordered under Section 160(2)(c) and (k) of the Education (Queensland College of Teachers) Act 2005 (Qld) that:

  1. Teacher GBJ is reprimanded for behaving in ways that do not satisfy the standards of behaviour expected of a teacher;
  2. Teacher GBJ is required to provide a detailed and independent psychologist’s report from Ms Kylie Lavers which addresses:
    1. GBJ’s general suitability to teach and work in a child-related field;
    2. GBJ’s awareness of what constitutes appropriate and inappropriate communication and behaviour with children;
    3. GBJ’s understanding of the concept of professional boundaries and the importance of maintaining professional boundaries for the protection of children;
    4. how GBJ actively determines and implements professional boundaries with individual students;
    5. examines in depth with GBJ the extent and nature of the student parental and community trust invested in a teacher;
    6. GBJ’s understanding and full adherence to the Queensland College of Teachers’ Code of Ethics;
    7. whether or not the Psychologist is satisfied that GBJ has adequately understood and addressed the above points; and
    8. confirmation that the Psychologist was provided with copies of the Tribunal’s decision and reasons for the decision.
  3. The costs of obtaining the Psychologist’s report are to be met by GBJ.
  4. The Psychologist’s report must be provided to the Queensland College of Teachers within 6 months of this Order.
  5. Upon receipt of the Psychologist’s report the Queensland College of Teachers must decide if the report addresses the issues to the satisfaction of the Queensland College of Teachers. If the Queensland College of Teachers is so satisfied, it will be noted on GBJ’s details on the Register of Approved Teachers that the requirement has been fulfilled and its monitoring will be deactivated. If the Queensland College of Teachers is not so satisfied, then the Queensland College of Teachers must consider whether to commence new proceedings by referring the matter to this Tribunal on the basis that GBJ has failed to provide a report to the satisfaction of the Queensland College of Teachers.
  6. Publication of any information which may enable the identification of GBJ, students or the relevant school is prohibited. Other than to the parties to the proceeding, publication is prohibited of any information other than as contained in the de-identified, redacted version of the reasons for decision.

CATCHWORDS:

Teacher – Disciplinary referral – behaviour that does not satisfy the standard of behaviour generally expected of a teacher – sanction – Psychologist’s report

Education (Queensland College of Teachers) Act 2005 ss 3, 92(1)(h), 158, 160(2)(c) and (k)

Briginshaw v Briginshaw [1938] HCA 34

Medical Board of Australia v Chandra [2014] QCAT 271

Nursing and Midwifery Board of Australia v Faulkner [2017] QCAT 141

Queensland College of Teachers v Armstrong [2010] QCAT 709

Queensland College of Teachers v FAS [2017] QCAT 226

Queensland College of Teachers v Genge [2011] QCAT 168

Queensland College of Teachers v Horst Henry Feirebend [2016] QCT 10

Queensland College of Teachers v Rudd (2011) QCAT 367

Queensland College of Teachers v Teacher FBA [2017] QCAT 224

Queensland College of Teachers v Teacher X [2016] QCAT 108

APPEARANCES:

 

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

REASONS FOR DECISION

  1. [1]
    On 3 January 2017 the Queensland College of Teachers (QCT) filed an Application or Referral - Disciplinary Proceedings, seeking certain Orders with respect to disciplinary action against the Respondent, Teacher GBJ.
  2. [2]
    The Tribunal has had regard to the matters filed by the Queensland College of Teachers and the Respondent.
  3. [3]
    The Respondent has said that he does not require a full hearing in the matter.

Non-publication

  1. [4]
    A non-publication order has been made to protect the identity of students involved in this matter. We make a further order prohibiting publication of any information which may identify any students, the school and the respondent’s name, other than as Teacher GBJ; and except to the parties to the proceeding, prohibiting publication of any information other than as contained in the de-identified, reacted version of the reasons for decision.

Issues

  1. [5]
    The Queensland College of Teachers submits, and we accept that:
    1. the issues to be determined by the Tribunal are:
    1. whether the “ground for disciplinary action” that “the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a Teacher” is established[1]; and
    2. if so, the appropriate disciplinary action to be applied.[2]

Agreed facts and matters

  1. [6]
    The parties filed a Statement of Agreed Facts and Disputed Matters, on 25 August 2017.
  2. [7]
    The agreed facts follow.
    1. The Respondent was born on 18 September 1960.
    2. The Respondent was first registered as a provisional Teacher in Queensland on 7 July 2014 and remains registered as a Teacher with provisional registration.
    3. The Respondent was a “relevant Teacher” with provisional registration under Chapter 2 of the Education (Queensland College of Teachers) Act 2005 (Qld) (“the QCT Act”) as at 3 January 2017 when the Applicant commenced proceedings in the Queensland Civil and Administrative Tribunal (“the Tribunal”).
    4. The 2015 Queensland State School year commenced on 22 January 2015 for teachers and 27 January 2015 for students.
    5. The Respondent was employed as a contract relief teacher at a State high school in Queensland as follows:
      1. the Respondent was employed and commenced on a full-time contract for Term 1 from 27 January 2015 to 2 April 2015.  The Respondent did not engage in professional staff development days on 22 and 23 January 2015;
      2. on a date between 27 January 2015 and 13 February 2015, the Respondent was advised his contract had been reduced to a part-time contract occupying a 0.6 full-time equivalent (FTE) teaching load;
      3. from the date the Respondent commenced his part-time contract, on or around 16 February 2015, he taught a Grade 7 class for 3 subjects.  The Respondent also taught in a relief capacity for a variety of other subjects over different year levels.  He supervised a sport one afternoon a week and was responsible for a Year 8 class on a day of activities.
    6. The Respondent’s first day employed as a teacher at the high school was Tuesday 27 January 2015 (day one).
    7. The Respondent’s last day of teaching at the high school was Wednesday 11 March 2015 (day 32).
    8. The Respondent taught at the high school for 32 school days.
    9. The Respondent was suspended on full pay, pending the outcome of an investigation by the Department of Education and Training (DET), by letter dated 11 March 2015 (day 32).
    10. The Respondent’s employment at the high school was the respondent’s first long-term teaching engagement since he obtained teacher registration on 7 July 2014.
    11. At all material times, the Grade 7 class consisted of approximately 28 students including 12 female students and 16 male students.  Specifically, the class included the following students:
      1. BB (DOB: 4 April 2003).  BB commenced at the high school on a date on or around 10 February 2015 (day 11);
      2. AA (DOB: 17 February 2003); and
      3. CC (DOB: 3 January 2003).
    12. The Respondent, as an employee of the high school, had access to DET software “ID Attend” and “OneSchool” as follows:
      1. ID Attend is a database that records students’ attendance at school;
      2. OneSchool is a database that stores students’ personal details including a photograph of the student on the “home” page;
      3. OneSchool contains, among other information, the students’ home address, parents’ name and telephone numbers and email addresses, emergency contacts, students’ medical details, academic results and behaviour records;
      4. OneSchool does not contain students’ personal mobile telephone numbers or students’ personal email addresses.
    13. On 16 February 2015 (day 15), 18 February 2015 (day 17), 24 February 2015 (day 21), 1 March 2015 (beginning of week six) and 7 March 2015 (end of week six), the Respondent viewed student data from students of the class on OneSchool.
    14. The Respondent accessed OneSchool data for 11 out of the 12 females in the Grade 7 class with a total viewing time of 123 minutes (two hours, three minutes).  In particular, out of the 11 female students, he viewed the following female students:
      1. BB for a total viewing time of 29 minutes;
      2. AA for a total viewing time of 17 minutes; and
      3. CC for a total viewing time of 10 minutes.
    15. The Respondent accessed OneSchool data for three out of 16 males in the class, with a total viewing time of approximately three minutes.
    16. The Respondent viewed OneSchool data at all times of the day and night including:
      1. on Saturday 7 March 2015 (Saturday of week six).  At 4.22am, the Respondent accessed the OneSchool records of student CC. The Respondent viewed at least six pages of CC’s OneSchool information;
      2. on Saturday 7 March 2015 (Saturday of week six) at 4.24am, the Respondent accessed the OneSchool records of student AA.  The Respondent viewed at least nine pages of AA’s OneSchool information.
    17. In the two hours, six minutes of time the Respondent spent viewing OneSchool data for students of the Grade 7 class, the Respondent never added or input any data about any students in the time he taught at the high school.
    18. At all material times the Respondent had access to and the ability to input data into OneSchool about students’ behaviour, academic performance, assessment and welfare issues.
    19. The Respondent did not enter any data about any student in his time at the high school.
    20. At all material times the Respondent:
      1. knew that students BB, AA and CC were Year 7 students at the high school;
      2. knew that Year 7 students in Queensland schools are aged between 11 years and 12 years old.
    21. The Respondent’s employing authority, the DET, finalised its formal disciplinary action and imposed a reprimand and a notation on the Respondent’s employment teaching record that he only be permitted to undertake “supply teaching” for a period of six months, effective from 3 March 2016.
    22. To date, the Respondent has not applied to DET to have the “notation” lifted.
    23. Since approximately May 2016, the Respondent has taught as a relief teacher on a part-time basis at five schools in a different part of Queensland.
    24. On an unknown date at the beginning of the school year (between 27 January 2015 and 28 February 2015) (day one to 24) during class time, the Respondent asked all students in the Grade 7 class for their personal mobile telephone numbers and personal email addresses.
    25. The Respondent had two personal mobile telephone numbers registered with Telstra.
    26. The Respondent gave students one of his mobile numbers with an instruction that the number was to be used for texting only.
    27. Student AA’s personal mobile number was recorded on the Respondent’s mobile telephone, not used for texting.  On 2 March 2015 at 3.01pm, the Respondent, on his mobile telephone, telephoned AA on her personal mobile number.  The call was two seconds in duration.  The purpose of this telephone call was to record AA’s number in the Respondent’s mobile telephone.
    28. On or around 4 or 5 March 2015 (day 27 or 28) during class/school time, the Respondent asked students BB and AA to write down their personal mobile telephone numbers in a book belonging to the Respondent.
    29. Student BB wrote down telephone numbers for her mother and grandmother.  Student AA wrote down telephone numbers for herself and for her mother.
    30. The Respondent has been unable to provide the book in which the students wrote their phone numbers.
    31. On 5 March 2015 (day 28), at approximately 3.05pm in the classroom, the Respondent gave student BB a tiara.
    32. Student BB was the only student in the Grade 7 class to receive a gift, specifically a tiara, from the Respondent.
    33. On Saturday 7 March 2015 (Saturday of week six) between 4.22am and 4.23am, the Respondent accessed OneSchool records of student CC and reviewed at least six pages of CC’s OneSchool information which included the students’ home address.
    34. On Saturday 7 March 2015 (Saturday of week six) between 4.24am and 4.27am, the Respondent accessed OneSchool records of student AA and reviewed at least nine pages of AA’s OneSchool information, which included the students’ home address.
    35. At 9.52am on Saturday 7 March 2015, the Respondent, on his mobile telephone (not for texts), telephoned student BB on her grandmother’s telephone number.
    36. Student BB’s grandmother answered the telephone.
    37. At 9.56am on Saturday 7 March 2015 (Saturday of week six), the Respondent on his mobile telephone (not for texts), telephoned student AA on her personal mobile number.  The call lasted one minute in duration.
    38. By letter dated 11 March 2015 (day 32), the Respondent was suspended by his employer.  The terms of the Respondent’s suspension were as follows:
      1. “… You are directed not to contact any students of the Department or staff of … State High School during the course of your suspension, without first obtaining permission from your departmental contact.  This direction includes but is not limited to, verbal/physical contact and the use of electronic communication/social networking mediums”.
    39. On 12 March 2015 (day after his suspension) at 7.12am, the Respondent, on his mobile telephone (not for texts), telephoned student AA on her personal mobile number.
    40. The telephone call was five minutes and 10 seconds in duration.
    41. Between 27 January 2015 and 12 March 2015, the Respondent, while the designated class teacher for the Grade 7 class at the high school:
      1. gave out to the class his personal mobile number with instructions that the number was only to be used for text messages;
      2. transported students DD and EE in his taxi as part of his secondary employment as a Taxi Driver for Gold Coast Cabs, despite the Respondent and students knowing each other’s status as a Teacher and students at the high school;
      3. gave the Grade 7 class students lollies (Minties);
      4. played music/songs in class (one or two songs) that was of interest to the students as a behaviour management tool;
      5. was organising a class party (outside of school hours and unrelated to school) at a trampoline centre called “The Air Factory” which he volunteered to pay for out of his own personal finances up to a maximum of $300.00.
    42. The parties agree that the agreed facts and matters set out above establish a “ground for disciplinary action” and that “the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a Teacher” under section 92(1)(h) of the Act.

Disputed matters

  1. [8]
    The parties do not agree in relation to the following matters:
    1. particulars of allegations against the Respondent made in the QCT’s Application or Referral – Disciplinary Proceeding, filed 3 January, 2017 being allegations 2, 4, 6, 7, 8, 9, 11 and 12; and
    2. whether the Respondent undertook the State high school’s induction on 27 January 2015.
  2. [9]
    The QCT filed submissions in relation to the disputed matters on 25 August 2017 and the Respondent filed submissions on 11 September 2017 which we have considered.
  3. [10]
    We have made findings in relation to the disputed matters upon the balance of probabilities having regard to Briginshaw v Briginshaw[3].
  4. [11]
    We accept the submission of the QCT that the relevant time for determining whether a person has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher, is at the time of the conduct.

Findings in relation to Disputed Matters

Whether the respondent undertook State high school induction on 27 January 2015

  1. [12]
    We accept the submission of the Respondent that he did not undertake the induction at the high school on 27 January 2015, because of late commencement at the school.
  2. [13]
    We note the submission by the QCT that the Respondent had in any event completed an online Student Protection Training Course with a regional centre’s Catholic Education Office, approximately three years earlier when he started his Graduate Diploma.
  3. [14]
    The QCT submits that in view of the Respondent’s past employment history in the public sector and in other senior roles it could have been expected that the Respondent ought to have been aware that his behaviour was inappropriate.
  4. [15]
    We accept that a mature entrant to the teaching profession with the background demonstrated by the Respondent should have been aware of professional boundaries in his interactions with students. However, we do consider it a mitigating circumstance that the Respondent did not undertake a current induction on 27 January 2015, so that appropriate boundaries were fresh in his mind and he was able to raise questions if concerns arose.  The induction he would have received on 27 January 2015, if matters had proceeded in the ordinary way, included code of conduct and standard of practice training.

Whether, as at 2 March 2015, student AA had not told the respondent her mobile telephone number; and whether on or before 2 March 2015 the respondent had obtained student AA’s personal mobile number by unknown means (Allegation 2)

  1. [16]
    The Respondent acknowledges that he did have AA’s mobile phone number as at 2 March, 2015. In his submissions filed 24 February, 2017 the Respondent says that on 2 March, 2015 AA provided her number to him.  The Respondent says that he rang the number in front of her, to record it on his phone.  The Respondent says that came about because AA had been seeking support from him as she had been unwell and distracted by events in her life.
  2. [17]
    There is insufficient evidence to say whether the Respondent may have had AA’s number before that date and if so how he came to have the number.

Whether:

(i) At the time of asking students AA and BB to write down their personal mobile phone numbers, on or around 4 or 5 March 2015 (day 27 and 28), the Respondent told students AA and BB that he would call them on the weekend and take them out for lunch and/or ice-cream as follows:

The Respondent uttered words to the effect of:

“I will just give you two a call over the weekend and maybe I’ll take you out for lunch or something or maybe we could do something else, okay?”; and

“I’ll give you a call over the weekend and see if we can go out for ice-cream or lunch or something.”

(ii) The Respondent uttered words to the effect of:

“I will be in the area this weekend and wanted your number for lunch or so we can talk about your assessment”; and

“… Well, if you want to, you can catch-up with me and we can go out for ice-cream or just some lunch somewhere”.

“… We can go out for lunch somewhere or we can go out for ice-cream somewhere”. (Allegation 4).

  1. [18]
    In this regard, the QCT adopt information provided to the investigator in this matter, which forms the basis of the above particulars.[4]
  2. [19]
    The Respondent gives a different version of events, he suggests that he held conversations on Friday, 4 or 5 March 2015, to the effect that AA and BB should meet up on Saturday and have lunch together.  The Respondent suggests that was an attempt by him to have BB ensure that AA was eating, because of suggested eating disorders on the part of AA.  The Respondent acknowledged that he arranged to ring AA on Saturday as a “welfare check” and that he did do so, after he had rung BB’’s house and spoken with her grandmother.
  3. [20]
    The Respondent denies having any intention to meet either AA or BB.
  4. [21]
    On balance, we are prepared to accept the submissions of the QCT, considering the statements given by the students, AA and BB, to the DET investigator, which are consistent with their early Accounts of Incident records and corroborative of each other’s statements.[5]
  5. [22]
    We accept the version of events particularised by the QCT.

Whether:

(i) The Respondent said in a telephone call to BB’s home number, “… Is BB there?  I’d like to talk to her”. (Allegation 6)

  1. [23]
    The QCT refer to the investigator’s report of a statement given to her by BB’s grandmother and BB. [6]
  2. [24]
    The Respondent suggests that BB’s grandmother is mistaken.  He denies asking to speak with BB when he rang.  He does not, however, deny telephoning the number in question.  He says that he recalls asking to speak with BB’s mother.  It is suggested that the grandmother’s recollection of his conversation with her has become unintentionally tainted as a result of discussions with a friend with whom the grandmother discussed the call.
  3. [25]
    We note that the Investigator in her report, attached to the QCT Referral has discerned a matter which makes the Respondent’s version of events unreliable.  The investigator refers to an email submission made by the Respondent as part of the investigation to the effect that the call was made after he had checked One School records for the family’s phone number.  The data access supplied by One School indicates he did not check BB’s details on 7 March, 2015 as suggested by him.
  4. [26]
    Because of this anomaly in the Respondent’s response to the investigator we prefer to accept the submissions of the QCT and rely upon the Record of Interview taken by the investigator, as a fair record of the grandmother’s recollection.
  5. [27]
    We accept the version of events particularised by the QCT.

Whether in relation to a phone call to AA on 7 March, 2015:

(i) The Respondent uttered words to the effect of:

What are you doing today?” I [he] will be in the area and if you [I] wanted to talk, text him and we will meet up to talk”.

“Do you want to meet at Cold Rock or have you got plans?”

“Do you want to meet up at Cold Rock or do, do you want me to come pick you up and we’ll got get some lunch?” (Allegation 7)

  1. [28]
    In its submissions, the QCT suggests that AA’s evidence is consistent in relation to the Respondent’s offer to meet up with her for lunch or an ice-cream.[7]  The QCT notes that the Respondent at first could not recall telephoning AA, but once telephone records were obtained he later admitted to making the phone call, but only for the purpose of enquiring about her health and to ask if she was eating properly.[8]
  2. [29]
    The Respondent does not address the matter in his further submissions, but does point to his response to the Show Cause Notice delivered by the Department of Education and Training.  We note in his response that he concedes ringing AA on 7 March 2015 to enquire about her health and to ask whether she was eating properly.  He says that he did not invite her to lunch or to Cold Rock.  He says he does not know where the idea of going to Cold Rock came from.  He said that he may well have told her to ensure she ate lunch, but in no way did he invite her to lunch.
  3. [30]
    The Respondent also says that the only transport he had was a motorcycle and he was in no position to offer anyone transport to lunch or to Cold Rock. We think that it is possible the Respondent could have obtained another vehicle for the purpose of the lunch or visit to Cold Rock.
  4. [31]
    On balance, we accept the submissions of the QCT and in particular AA’s Record of Interview given to the investigator, and her Account of Incident made 10 March, 2015.   We agree with the QCT that AA’s version of events has been consistent. We prefer AA’s version of events because it has not been the subject of change as has been the case with the Respondent. The Respondent’s changed story gives rise to a concern that his evidence is unreliable.
  5. [32]
    We accept the version of events particularised by the QCT.

Whether:

(i) On or about Monday, 9 March 2015 (day 30), the Respondent, during class/school time told student AA that he drove past her house on the weekend and saw her wearing a blue bikini with some friends.

(ii) Student AA:

(1) owned a blue bikini;

(2) was wearing her blue bikini on the weekend of 7 and 8 March 2015;

(3) never wore her blue bikini to school;

(4) never told the Respondent that she owned and/or was wearing a blue bikini;

(iii) The Respondent uttered words to the effect of:

(1) “… He drove past my house and saw me in my bikini with some friends”;

(2) “… He drove past my house and saw me in my blue bikini with two or three friends”;

(3) “… Oh I saw you in - was it you wearing a blue bikini on the weekend?” “… because (I saw) you with a couple of friends”. (Allegation 8)

  1. [33]
    The QCT in its submission refers to the evidence of AA that on Monday 9 March 2015 the Respondent told her he drove past her house on the weekend and saw her wearing a blue bikini and with some friends.  The QCT records that AA confirmed she was wearing a blue bikini that weekend, had never worn her bikini to school and had not told the Respondent she owned a blue bikini.  The QCT submits it is open for the Tribunal to find that the Respondent would not have known that AA owned a blue bikini unless he had driven past her that weekend.
  2. [34]
    The QCT notes that the Respondent stated he did not recall the conversation.
  3. [35]
    In the investigator’s report, a notation is made that the Respondent does not recall having any conversations with AA about her wearing a blue bikini. [9]
  4. [36]
    The Respondent suggests in his submissions, filed 11 September, 2017, that this information emerged from a class discussion about what students did over the weekend. The submission does not directly address the allegation that the Respondent said he drove down AA’s street and saw her wearing a blue bikini and that she was with friends. It is difficult to see how reference to the Respondent’s statements could naturally emerge from discussion by AA in class. The Respondent does not address the matter in his response to the Show Cause Notice.
  5. [37]
    On balance, we accept the submissions of the QCT, relying upon the statements given to the investigator by AA.
  6. [38]
    We accept the version of events particularised by the QCT.

Whether:

(i) On Monday, 9 March 2015 (day 30), at the end of a lesson, the Respondent called student CC over to him and said words to the effect of:

“I was in your street on Saturday (7 March 2015)”.

(ii) On Monday, 9 March 2015 (day 30), at the end of a lesson, student BB heard the Respondent say to student CC words to the effect of:

“Oh, you only live just down the road, … Drive”.

(iii) Student CC has never talked about or told the Respondent where she lives or her home address. (Allegation 9)

  1. [39]
    The QCT, in its submission, refers to the evidence given to the investigator by CC that on Monday 9 March 2015 the respondent told her he was in her street on Saturday and the street name. [10]
  2. [40]
    The QCT notes that the Respondent stated to the investigator that he could not recall this conversation and doubted that it occurred.[11]
  3. [41]
    The QCT submits that it is open for the Tribunal to find that on the weekend of 7 and 8 March 2015 the Respondent drove down the streets of students AA and CC.
  4. [42]
    We note in the Investigation Report prepared for DET that the investigator records the evidence that the Respondent accessed the OneSchool records of students AA and CC on Saturday 7 March 2015, at 4:22am and 4:24am.[12]
  5. [43]
    We are prepared to draw the inference that the reason for accessing the OneSchool records at unusual hours of the day, on a non-school day, is consistent with the Respondent searching for the home addresses of the students in question. We agree with the QCT that the evidence is sufficient to enable a finding that the Respondent drove down the streets of students AA and CC on 7 March, 2018.
  6. [44]
    This is particularly the case because of our finding that the Respondent told AA that he had driven down her street and observed her wearing a blue bikini and in the company of friends, which is information he could not have known unless he was in her street.
  7. [45]
    We accept the submissions of the QCT that the statements given to the investigator by the students should be accorded weight and note the lack of satisfactory explanation by the Respondent. The Respondent has shifted his response to the allegation from a lack of recollection to a suggestion in his submissions filed 11 September, 2017, that the students themselves relayed information about the allegation that “I have said things about driving down student’s streets…”.  The suggestion is improbable, in that it is hard to understand how statements attributed to the Respondent could emerge from a class discussion about events of the week-end.
  8. [46]
    In the circumstances, we accept the version of events as particularised by the QCT.

Whether:

(i) On unknown dates during class and immediately after the end of lessons (between day one and day 32), the Respondent used inappropriate words and engaged in inappropriate physical contact with student CC as follows:

(a) Called CC “BAE” which CC states means “Before Anyone Else”.  Further, CC states that the term or phrase “BAE” is commonly used by students in Year 7 at the high school with reference to their friends;

(b) Called CC by her nickname;

(c) On approximately two occasions, the Respondent tickled CC in the middle of her back.  The Respondent then whispered in her ear:

A. On one occasion words of encouragement about her schoolwork; and

B. One another occasion, requested she see the Respondent after class.

(d) On one occasion, the Respondent tucked CC’s hair behind her ear as he walked past her desk. (Allegation 11)

  1. [47]
    The QCT in its submission refers to the statement given to the investigator by CC.[13] 
  2. [48]
    We note that there is corroboration for the statement given by CC, from AA, including that she heard the Respondent call CC “babe or something” and that the Respondent tickled CC and pushed her hair behind her ear.[14]
  3. [49]
    The Respondent criticises the evidence against him, suggesting that the allegations are not supported by any evidence from children sitting near CC.  He submits that CC’s allegations against him arise out of resentment at being the subject of discipline for her conduct. The Respondent provides no evidence that is the case other than the making of the allegations. It seems improbable to us that CC would detail the range of conduct alleged if she were deliberately lying in order to “grind an axe” against the Respondent, as he suggests. Further, CC’s complaints are corroborated by AA. We do not accept that AA’s corroboration is uncertain or more akin to relaying gossip rather than a first-hand account. AA gives a version of events to the investigator on the basis of her observations in class.
  4. [50]
    We accept the version of events as particularised by the QCT.

Whether:

(i) The Respondent breached his professional boundaries on multiple occasions while teaching the Grade 7 class at the State high school between 27 January 2015 and 12 March 2015 as follows:

(a) Used the profanity “fuck” during class and on occasion used the profanity “fuck” in language directed at students. (Allegation 12)

  1. [51]
    The QCT submits that CC made a statement to this effect.  There is also a reference to AA referring to another profanity.[15]
  2. [52]
    The Respondent completely denies using the profanity attributed to him by CC.
  3. [53]
    We note that the allegations were not expressly the subject of the Show Cause Notice.  The investigator does not refer to the matter in her report. 
  4. [54]
    In view of the lack of corroboration of CC’s statement as to the profanity used and the lack of complaint from other students we do not consider there is sufficient evidence to find that the Respondent used the profanity alleged.

Finding as to Ground for Disciplinary Action

  1. [55]
    On the basis of the agreed matters and our findings in relation to the disputed matters we find that there is a ground for disciplinary action against the Teacher in accordance with s 92(h) of the QCT Act, being behaviour that does not satisfy the standard of behaviour generally expected of a teacher.[16]

Sanction

Psychologist’s report

  1. [56]
    During its consideration of this matter, the Tribunal issued Directions to the parties directing that they file and serve submissions in relation to the following issues:
    1. whether the Respondent should be required to provide a detailed and independent Psychologist’s report which addresses the following issues, to the satisfaction of the Applicant, QCT:
      1. the teacher’s general suitability to teach and work in a child-related field;
      2. awareness of what constitutes appropriate and inappropriate communication and behaviour with children;
      3. the concept of professional boundaries and the importance of maintaining professional boundaries is for the protection of children;
      4. actively determining and implementing professional boundaries with individual students;
      5. an in-depth examination of the extent and nature of the student parental and community trust invested in a teacher;
      6. understanding and full adherence to the Queensland College of Teachers Code of Ethics;
      7. understanding and full adherence to the Queensland College of Teachers “Professional Boundaries: A Guideline for Queensland Teachers”;
      8. confirmation from the Psychologist whether or not they are satisfied that the Respondent has adequately understood and addressed the above points; and
      9. confirmation that the Psychologist was provided with copies of the Tribunal’s decision and Section 97 referral;
    2. if a Psychologists report is to be provided, details of the name of the Psychologist to be consulted, when the Psychologist should be consulted, who is to meet the cost of the consultation and report and what will follow upon receipt of the report.
  2. [57]
    As directed, the parties filed submissions.
  3. [58]
    In its submissions, the QCT submits that it is appropriate to require the Respondent to provide an independent Psychologist’s report addressing the issues identified by this Tribunal.  The QCT refers to other cases where reports have been required[17].
  4. [59]
    In relation to the QCT’s reference to a health assessment under section 136 of the QCT Act, we do not consider that process to be relevant in this case.  The Tribunal relies upon section 160(2)(k) of the QCT Act as its power to require provision of a psychologist’s report.
  5. [60]
    The QCT submits that there are a broad range of circumstances wherein a Psychologist’s report may be required.  Broadly, these may be classified into two categories.  Psychological reports may be required to demonstrate the teacher’s insight into the conduct and understanding of appropriate professional boundaries and the trust vested in a teacher, as well as to provide an assessment of the teacher’s risk of repeating similar behaviour, and their suitability to teach and work with children.  Alternatively, reports may be required because the teacher has an impairment, such as a psychological condition, and the reports are required as evidence of compliance with any treatment and/or to assess the teacher’s suitability to teach and work with children in light of that condition and its treatment.  The QCT submits that the present matter falls into the first of these categories.  We accept that submission.
  6. [61]
    The QCT submits that upon further consideration, the concerns raised by the Respondent’s conduct are of such gravity that the requirement for a psychological report is a more proportionate response than the requirement to attend a professional boundaries course, which had at first been contemplated by it.
  7. [62]
    The QCT has nominated Ms Kylie Lavers as an appropriate Psychologist to provide the required report.  Ms Lavers practices in the city where the Respondent currently resides.
  8. [63]
    A Curriculum Vitae for Ms Lavers has been provided and an estimate of her fees.  The QCT is prepared to consider an alternative nomination.  We note that no alternative has been provided.
  9. [64]
    In the circumstances, we accept that Ms Lavers is an appropriate Psychologist to provide the required report.
  10. [65]
    We note that Ms Lavers estimates it will take six to 10 hours to address the issues contained in the proposed Order.  The QCT submits that the report should be provided within six months of the Tribunal’s Order.  We note and accept the QCT’s submission for the need to address the concerns raised by the Respondent’s conduct in a timely fashion, given that the Respondent has continued and can continue to teach.
  11. [66]
    The Applicant submits that the cost of the consultation and report should be met by the Respondent.
  12. [67]
    The QCT submits that the Respondent must meet the cost of obtaining a satisfactory report from a Psychologist and refers to other decisions of the QCAT where such Orders have been made.[18]
  13. [68]
    Finally, the QCT submits that if the report addresses the issues to its satisfaction, then it will be noted upon the Respondent’s details on the Register of Approved Teachers that the requirement has been fulfilled and its monitoring will be deactivated.
  14. [69]
    The QCT noted that regardless of whether the requirement is worded as a condition under section 160(2)(h) or under section 160(2)(k) of the QCT Act, it will not appear on the publicly available part of the Register.
  15. [70]
    The QCT submits that if the report fails to address the issues to the satisfaction of the QCT, then the QCT may consider whether it believes that a ground for disciplinary action exists against the Respondent on the basis that the Respondent has contravened an Order made under the QCT Act by the Tribunal.
  16. [71]
    If the QCT then holds such a belief, it will be required to commence new practice and conduct proceedings by referring the matter to the Tribunal on the basis that the Respondent has failed to provide a report to the satisfaction of the QCT.
  17. [72]
    The Respondent submits that a Psychologist’s report is not required and that it is onerous and unaffordable for him to be required to meet the cost of such a report.
  18. [73]
    The Respondent submits that, despite historical treatment by a Psychiatrist and a Psychologist for Post-Traumatic Stress Disorder and related health issues, nothing has been identified by either the Psychiatrist, Dr Khan, or the Psychologist, Roz Batty, to suggest the Respondent was anything other than generally suitable “to teach and work in a child-related field”.  We note that we have not been provided with copies of the Psychiatrist and Psychologist’s reports referred to by the Respondent.
  19. [74]
    The Respondent repeats submissions made earlier in these proceedings that his actions did not reveal a psychological flaw in his character, but rather came about as a result of the failure of the employer to provide a proper induction process covering policies and procedures and specifically for a newly qualified teacher on the Department of Education, Training and Employment’s standard of practice.  The Respondent says that a lack of proper induction process had a significant impact on the Respondent in the circumstances which arose as he has had a life and career experience predicated on supporting and assisting people generally and young people in particular.
  20. [75]
    The Respondent submits that the cases relied upon by the QCT as justifying provision of a Psychologist’s report are distinguishable from his circumstances.  He submits that each of the matters the subject of the cited cases are far more serious than those before this Tribunal. We accept that the circumstances described in the cases cited by the QCT are very serious, however, we consider that at the very least the cases demonstrate the power of QCAT to require such a report and the breadth of circumstances where such a report may be helpful.  In the end, each disciplinary matter before this Tribunal will turn on its own facts, which this Tribunal must consider with the objects of the QCT Act clearly in mind.
  21. [76]
    We note that on 5 June 2017, the Respondent filed in the Tribunal a Medical Certificate from his treating General Practitioner to the effect that the General Practitioner had not had referred him to any Psychologist and Psychiatrist and had received no incoming correspondence from any mental health professionals relating to the Respondent.  Dr Thomson, the General Practitioner, expressed the opinion that the Respondent’s mental health is stable.
  22. [77]
    We note that the General Practitioner was not asked to address the matters isolated by this Tribunal.  In fact, we are unaware what knowledge Dr Thomson may have of this matter.  We are unable to attribute any weight to Dr Thomson’s report.
  23. [78]
    The Respondent has undertaken certain training.  He submits that as part of the sanction imposed by DET, he undertook training courses on the Code of Conduct and professional boundaries.  He successfully returned to teaching with DET in 2016 in a casual, relief capacity.
  24. [79]
    The Respondent has undertaken online and face-to-face professional boundaries and student protection training with the Catholic Education Office.  That was conducted on 13 January 2017 by Jennifer Blackshaw.  She is employed by the Catholic Education Office as a Senior Social Worker - Student Protection and is also a Lecturer in the field.
  25. [80]
    The training undertaken addressed issues of appropriate and inappropriate communication and behaviour with children; establishment and maintenance of professional boundaries for the protection of children and individual students.
  26. [81]
    The Respondent submits that he has downloaded a webinar presentation and reviewed it on the topic of professional boundaries.  That presentation was conducted by the QCT on 16 October 2017.
  27. [82]
    The Respondent says that he accepts that his conduct was less than the standard required and has complied with employer imposed sanctions.  He has taken independent self-improvement action and submits that he demonstrates a commitment to reflection and self-evaluation.
  28. [83]
    The Respondent says the transgressions were made by an inexperienced teacher focused on providing a supportive learning environment and that he has learnt from the experience and subsequent opportunities.  He submits that he has become an “in demand” relief teacher and a reference to that effect has previously been provided to the Tribunal.
  29. [84]
    The Respondent submits that his conduct has not been questioned since the 2015 circumstances now before the Tribunal.
  30. [85]
    The Respondent is critical of the failure of the QCT to advise him of the investigation they conducted in relation to this matter and the failure by the QCT to follow-up with further interviews of students and school staff to clarify issues raised by him.
  31. [86]
    This Tribunal notes that the Respondent has acknowledged many of the allegations made against him and has, in fact, accepted that a reprimand is an appropriate sanction.
  32. [87]
    In the circumstances, we do not consider there is any utility in exploring further the question of any investigation conducted by the QCT.  In any event, we consider on the material before us that any investigation conducted by the QCT involved merely an adoption of the investigation undertaken by DET.
  33. [88]
    The QCT has given submissions in reply.  In relation to the Respondent’s submission that requiring him to bear the cost of the Psychologist’s report imposes a financial and punitive burden which is not justified in the circumstances, the QCT points to the objects of the QCT Act[19].  The objects are to uphold the standards of the teaching profession, to maintain public confidence in the profession and to protect the public by ensuring that education is provided in a professional way.[20]
  34. [89]
    Disciplinary action is said by the QCT to be imposed to protect children and the community.  It is essential that persons registered as Teachers do not pose a risk of harm to children.[21]
  35. [90]
    It is submitted that requiring the Respondent to provide a satisfactory Psychologist’s report is appropriate in the circumstances.
  36. [91]
    We note that the QCT also refers to the lack of any report from Dr Khan which addresses the Respondent’s suitability to teach.
  37. [92]
    The QCT says that its case is properly founded upon agreed conduct or supported by the evidence.  It says that while acknowledging the Respondent has been consistent in describing his good intentions, the Applicant is concerned that the Respondent’s conduct, in particular, driving down or past the streets of students on the same day he looked up their “OneSchool” records, could be in the least perceived to be driven by an unhealthy obsession or ulterior motive.  A Psychologist’s report may identify if there are any concerns underlying the conduct.  We specifically agree that it is this conduct which is most alarming and in our view justifies obtaining a Psychologist’s report.
  38. [93]
    In relation to the criticisms of the cases relied upon by the QCT as precedent for requiring a Psychologist’s report, the QCT says that the requirement for a Psychologist’s report is not dependent upon the nature of the conduct but rather whether the conduct raises concerns about a Teacher’s suitability to teach and the Teacher’s suitability to work in a child-related field. The QCT says that a Psychologist’s report may include:
    1. the hypothesised causes of behaviour;
    2. an assessment of the level of the “risk of harm to children” posed by the Respondent, particularly having regard to the proven conduct;
    3. an assessment of any relevant risk and protective factors in the context of the Respondent’s suitability to teach and suitability to work in a child-related field;
    4. an assessment as to any likely change to the Respondent’s “risk of harm to children” as a result of exposure to relevant stressors likely to be experienced in the performance of the duties of a Teacher;
    5. any diagnosed psychological conditions, including any history of the condition and any past treatment for the condition;
    6. any treatment or interventions necessary to:
    1. address the causes of the behaviour;
    2. reduce the “risk of harm to children”; and
    3. any other consideration relevant to the Respondent’s suitability to teach or suitability to work in a child-related field.
  39. [94]
    The QCT says that the second purpose of requiring a Psychologist’s report is to ensure the Teacher has a solid awareness of, understanding of, and ability to abide by, the expected standard of professional conduct when interacting with students. We have agreed with the QCT’s earlier submission that the purpose of the report is primarily to assess the Respondent’s understanding of appropriate professional boundaries and the trust vested in a teacher, as well as to provide an assessment of the teacher’s risk of repeating similar behaviour, and their suitability to teach and work with children.  The QCT appears to shift its expectations of the Psychologist’s report in its submissions in reply.  We prefer the earlier emphasis as a reason for obtaining the report and think that the Psychologist reading this Decision should have guidance as to the scope and purpose of her report.  That is not to say that the report should ignore suitability to teach, which may be thrown up as part of the Psychologist’s consultations and report.
  40. [95]
    The QCT submits that it is not satisfied in relation to the extent or depth of the training undertaken by the Respondent.  Most significantly, it says that the training does not address the primary purpose for requiring a Psychologist’s report, which is to address the Respondent’s suitability to teach and work in a child-related field. As we have said, the Tribunal thinks that suitability to teach is one part of the purpose of the report.
  41. [96]
    The QCT addresses criticisms of its investigation. For the reasons given earlier, we do not pursue that matter.
  42. [97]
    The QCT agrees that because the Respondent was not employed by the school during the first few days of the school calendar year, he did not receive professional development training.  It does not suggest that he did receive a proper induction. 
  43. [98]
    The QCT submits that the requirement for a Psychologist’s report is appropriate on the basis that his proven conduct demonstrates a lack of awareness and understanding of the expected standard of behaviour of teachers when interacting with students and furthermore, raises concerns about his general suitability to teach and suitability to work in a child-related field.
  44. [99]
    We accept and adopt the QCT’s submissions, however, we consider that the Psychologist’s report should canvass the matters referred to in the Directions issued to the parties on which submissions were filed. It will be a matter for the Psychologist if other matters such as those posited by the QCT are dealt with in the report.
  45. [100]
    On the basis of the Respondent’s admission that his conduct with respect to the agreed matters establishes a ground for disciplinary action and that his behaviour does not satisfy the standard of behaviour generally expected of a teacher and further on the basis of the findings made by this Tribunal in relation to the matters disputed by the Respondent, we do not accept the Respondent’s submissions that it is unreasonable or punitive for him to bear the cost of consultations with the Psychologist and the cost of the report.
  46. [101]
    We order that the Respondent attend on Ms Lavers for the purpose of obtaining a report to be submitted to the QCT, within 6 months of the date of this decision in relation to the matters listed in the Orders made by this Tribunal. We agree with the QCT’s submissions in relation to how the Psychologist’s report is to then be dealt with.

Reprimand

  1. [102]
    The parties have agreed that a reprimand is an appropriate sanction. The appropriate sanction is of course a matter for this Tribunal under s 160 of the QCT Act. We are however satisfied that it is appropriate to reprimand the teacher. We have taken into account that:
    1. the QCT considers a reprimand to be an appropriate sanction;
    2. the teacher did not undertake a current induction which included code of conduct and standard of practice training;
    3. this case bears some similarities to the decision of Queensland College of Teachers v Rudd [2011] QCAT 367, where a reprimand combined with a requirement for a Psychologist’s report was considered appropriate.
    4. DET suspended the Respondent’s temporary contract on 11 March, 2015 and took disciplinary action by issuing a reprimand and imposing a notation on the Respondent’s employment record restricting his employment to supply teaching for six months from 3 March, 2016;
    5. the Respondent has continued supply teaching, apparently without further incident.

Orders

  1. [103]
    It is ordered under Section 160(2)(c) and (k) of the Education (Queensland College of Teachers) Act 2005 (Qld), that:
    1. Teacher GBJ is reprimanded for behaving in ways that do not satisfy the standards of behaviour expected of a teacher;
    2. Teacher GBJ is required to provide a detailed and independent Psychologist’s report from Ms Kylie Lavers which addresses:
      1. GBJ’s general suitability to teach and work in a child-related field;
      2. GBJ’s awareness of what constitutes appropriate and inappropriate communication and behaviour with children;
      3. GBJ’s understanding of the concept of professional boundaries and the importance of maintaining professional boundaries for the protection of children;
      4. how to actively determine and implement professional boundaries with individual students;
      5. examines in depth with GBJ the extent and nature of the student parental and community trust invested in a teacher;
      6. GBJ’s understanding and full adherence to the Queensland College of Teachers’ Code of Ethics;
      7. whether or not the Psychologist is satisfied that GBJ has adequately understood and addressed the above points; and
      8. confirmation that the Psychologist was provided with copies of the Tribunal’s decision and reasons for the decision.
    3. The costs of obtaining the Psychologist’s report are to be met by GBJ.
    4. The Psychologist’s report must be provided to the Queensland College of Teachers within 6 months of this Order.
    5. Upon receipt of the Psychologist’s report the Queensland College of Teachers must decide if the report addresses the issues to the satisfaction of the Queensland College of Teachers. If the Queensland College of Teachers is so satisfied, it will be noted upon GBJ’s details on the Register of Approved Teachers that the requirement has been fulfilled and its monitoring will be deactivated. If the Queensland College of Teachers is not so satisfied, then the Queensland College of Teachers must consider whether to commence new proceedings by referring the matter to this Tribunal on the basis that GBJ has failed to provide a report to the satisfaction of the Queensland College of Teachers.
    6. Publication of any information which may enable the identification of GBJ, students or the relevant school is prohibited. Other than to the parties to the proceeding, publication is prohibited of any information other than as contained in the de-identified, redacted version of the reasons for decision.

Footnotes

[1] Section 92(1)(h) and Section 158 of the Education (Queensland College of Teachers) Act 2005 (Qld) (QCT Act).

[2] Section 160 of the QCT Act.

[3] [1938] HCA 34.

[4] South East Region Account of Incident Statement by BB dated 10 March, 2015; Transcript of Record of Interview, dated 24 March, 2015 with BB at [122]; South East Region Account of Incident Statement by AA dated 10 March, 2015; Transcript of Record of Interview dated 24 March, 2015 with AA at [88]; Transcript of Record of Interview dated 24 March, 2015 with BB at [108].

[6] Transcript of Record of Interview dated 24 March, 2015 with BB’s grandmother at [14]; Transcript of Record of Interview, dated 24 March, 2015 with BB at [227]-[238].

[7] Statement of AA dated 10 March, 2015; DET Interview with AA dated 24 March, 2015 at [44], [202] and [250].

[8] DET Interview with the Teacher dated 1 May, 2015 at [878], [994] to [1001]; Response to allegations dated 23 October, 2015 p. 5; Email Teacher to Kellie Mahar, dated 19 May, 2015 (Attachment 5 to Investigator’s report).

[9] Investigation Report, dated July, 2015 at p. 33.

[10]Statement of AA dated 10 March, 2015; DET Interview with AA dated 24 March,2015 at [44] and [232].

[11] Investigation Report, dated July, 2015 at p. 35.

[12] Investigation Report, dated July, 2015 at p. 35.

[13] Statement of CC, dated 10 March, 2015; DET Interview with CC dated 27 March,2015 at [224] to [238], [272] to [274], [302], [322] to [350].

[14] DET Interview with AA dated 24 March, 2015 at [44], [329] to [406].

[15] DET Interview with CC dated 27 March, 2015 at [124] – [136] and DET Interview with AA dated 24 March, 2015 at [311].

[16] See Queensland College of Teachers v Armstrong [2010] QCAT 709 as to the standard being the standard reasonably expected by the community at large.

[17] Queensland College of Teachers v Teacher X (2016) QCAT 108; Queensland College of Teachers v Horst Henry Feirebend (2016) QCAT 10; Queensland College of Teachers v FAS (2017) QCAT 226.

[18] Medical Board of Australia v Chandra [2014] QCAT 271; Nursing and Midwifery Board of Australia v Faulkner [2017] QCAT 141.

[19] Queensland College of Teachers v Teacher FBA [2017] QCAT 224 at [47].

[20] QCT Act, section 3(1).

[21] Queensland College of Teachers v Genge [2011] QCAT 163 at [12].

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher GBJ

  • Shortened Case Name:

    Queensland College of Teachers v Teacher GBJ

  • MNC:

    [2018] QCAT 135

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick, Member Holzberger, Member Macdonald

  • Date:

    03 May 2018

Appeal Status

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

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