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Queensland College of Teachers v Teacher CJK[2019] QCAT 115

Queensland College of Teachers v Teacher CJK[2019] QCAT 115

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v CJK [2019] QCAT 115

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS (applicant)

v

TEACHER CJK

(respondent)

APPLICATION NO/S:

OCR025-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

24 April 2019

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Presiding Member Hughes

Member Quinlivan

Member Robyn Oliver

ORDERS:

  1. The teacher registration of Teacher CJK is cancelled pursuant to section 160(2)(d) of the Act;
  2. Pursuant to section 160(2)(j) of the Act, Teacher CJK is prohibited from re-applying for registration until further order of the Tribunal; and
  3. Other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information which may identify any relevant student, or the relevant school.

CATCHWORDS:

EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – approved teacher – where teacher’s registration is suspended due to criminal charges – where teacher acquitted of charges – where referral by the Queensland College of Teachers to the Tribunal – where teacher admitted overstepping accepted boundaries – where the teacher accepted disciplinary action appropriate – whether the 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 – whether teacher’s registration should be cancelled

Criminal Code Act 1899 (Qld), s 210(1)(a), s 210(3)

Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 92(2)(a), s 92(1)(h), s 158, s 160 (2)(d),

s 160 (2)(j), Schedule 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 1(3)(b), s 32

Queensland College of Teachers v Robert Lee Saunders [2013] QCAT 478

Queensland College of Teachers v SEF [2017] QCAT 55

Queensland College of Teachers v Glen Paul Utz [2015] QCAT 247

Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Holding Redlich

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]
    CJK was a primary school teacher with over sixteen years’ experience within the same Brisbane school. He knew the rules and the culture of the school well. He was a passionate sports coach who dedicated much of his free time, including at weekends, providing opportunities for students to both participate in and compete in many and varied sports for their school. This all ceased on 27 July 2014 when the police charged the teacher with numerous counts of sexual misconduct.
  2. [2]
    On 23 January 2015, the teacher was committed to trial in the Brisbane Magistrates Court in relation to seven charges of indecent dealing with children while working as a teacher. Five of these charges related to indecent treatment of children under 12 years and two charges related to indecent treatment of children under 16 years.
  3. [3]
    CJK is an ‘approved teacher’ under the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’) and therefore he is a ‘relevant teacher’ for the purposes of these proceedings.[1]
  4. [4]
    On 27 July 2014 the teacher was charged with offences under the Criminal Code Act 1899 (Qld) (‘Criminal Code’) that are ‘serious offences’ according to the Act:
    1. (a)
      2 counts of unlawful and indecent treatment of a child under the age of 16 years, and under 12 years, under sections 210(1)(a) & (3) of the Criminal Code; and
    2. (b)
      2 counts of unlawful and indecent treatment of children under 16 years of age under section 210 of the Criminal Code.
  5. [5]
    On 29 August 2016 the teacher stood trial on 3 counts of indecent treatment of children under 12 years of age and one count of indecent treatment of a child under 16 years of age and was found not guilty. Then, on 30 January 2017 he stood trial on 1 count of indecent treatment of a child under 12 years of age and was found not guilty. Finally, on 6 December 2017 he stood trail again on 1 count of indecent dealing of a child under 16 years of age and was found not guilty.
  6. [6]
    Soon after being charged, CJK’s teacher registration was suspended by the Queensland College of Teachers (‘QCT’) on 28 July 2014 and the matter was referred to QCAT for review. The suspension was continued by the Tribunal on 10 September 2014.
  7. [7]
    Section 92(2)(a) of the Act states that the ground for disciplinary action set out in section 92(1)(h) is taken to apply to a relevant teacher whose registration is suspended under section 48 of the Act where the teacher has been charged with a ‘serious offence’[2] and that charge has been ‘dealt with’[3] (which includes the relevant teacher being acquitted of the charge).
  8. [8]
    QCAT’s function under section 92(2) of the Act is to ensure that the circumstances of the charge are examined by a practice and conduct body[4] and to impose a sanction if necessary in the circumstances.
  9. [9]
    The ground for disciplinary action under section 92(1)(h) of the Act is that:
  1. (h)
    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.
  1. [10]
    Given the establishment of a ground for disciplinary action by section 92(2) of the Act, the matter was referred to the Tribunal on 30 January 2018 by the QCT under section 97 of the Act.
  2. [11]
    In accordance with Directions of the Tribunal on 27 March 2018, and after reviewing material produced by the Director of Public Prosecutions (‘DPP’) regarding the prosecution of the criminal offences, the QCT filed an amended referral with the Tribunal on 17 April 2018.

What are the details of the teacher’s acknowledged behaviours?

  1. [12]
    To assist the Tribunal, and for the purposes of considering the teacher’s conduct, both the QCT and the teacher have provided the Tribunal with a joint statement of agreed facts and facts in contention.
  2. [13]
    For the purpose of establishing whether or not the teacher is suitable to teach at the time of this hearing, the behaviours set out in the agreed facts about the treatment of the five children underpin these reasons.[5]

Child 1

  1. (a)
    Child 1 was 11 years old in 2013, and 12 years old in 2014.
  2. (b)
    The teacher was Child 1’s classroom teacher in 2013.
  3. (c)
    The teacher was not Child 1’s class teacher in 2014, but saw Child 1 regularly around the school, including when Child 1 visited the teacher’s classroom at lunch or morning tea.
  4. (d)
    During the 2013 school year, when Child 1 had sore/tight muscles, the teacher massaged Child 1.
  5. (e)
    It was agreed that the term ‘massage’ refers to the teacher pressing his thumbs into particular parts of Child 1’s body and applying pressure.
  6. (f)
    The teacher massaged Child 1 around the hip area but also other areas of the body such as ankles, legs, and back.
  7. (g)
    The massaging took place in the teacher’s classroom.
  8. (h)
    It was agreed that the massaging of the hip area referred to or involved the teacher pulling out the waistband of Child 1’s shorts and pressing his thumbs into the area directly beneath where the waistband sat.

Child 2

  1. (a)
    Child 2 was 11 years old in 2013 and 12 years old in 2014.
  1. (b)
    The teacher was Child 2’s classroom teacher in 2013, and Child 2’s cross- country coach in both 2013 and 2014.
  2. (c)
    During 2013 and the first two terms of 2014, when Child 2 was experiencing pain/discomfort, the teacher massaged Child 2 on some occasions.
  3. (d)
    It was agreed that the term ‘massage’ (including references to massaging the ‘groinal’ area) refers to the teacher:
    1. (i)
      pressing/digging his thumb into particular spots in the area of Child 2’s hips (front and side) and very lower back at the waistline which required the teacher to pull out Child 2’s shorts and underpants a few centimetres (or ask Child 2 to do so) whereupon the teacher put his hand/s at/just below the line of the pants (the exact position of hands was in contention) and pushed down/applied pressure; and
    2. (ii)
      pressing/digging his thumb into other parts of Child 2’s body such as his knees and shoulders.

Child 3

  1. (a)
    Child 3 was 11 years old at the time of the agreed behaviour.
  1. (b)
    The teacher was Child 3’s classroom teacher in 2013.
  2. (c)
    Child 3 did stand-up paddle-board training with the teacher in 2014.
  3. (d)
    On a date in 2014 the teacher drove Child 3 to Currumbin and back for a paddle-board event. Nobody else was present in the vehicle.
  4. (e)
    While driving in the vehicle the teacher asked Child 3 if he had been stretching his muscles.

Child 4

  1. (a)
    Child 4 was 11 or 12 years old at the time of the behaviour.
  1. (b)
    The teacher was Child 4’s classroom teacher and then cross-country coach.
  2. (c)
    At school break time in the classroom, the teacher applied ‘Rocktape’ to the back of Child 4’s thighs because he had sore muscles after an event.

Child 5

  1. (a)
    Child 5 was 10 years old at the time of the behaviour.
  1. (b)
    The teacher had been Child 5’s cross-country coach the year prior.
  2. (c)
    During the year of the behaviour, the teacher was Child 5’s classroom teacher.
  3. (d)
    After Child 5 complained of having a sore hip flexor after training, the teacher, in his classroom before school, pulled out the waistband of Child 5’s shorts and underpants and pressed into his hip flexor area.

What are the concerns about these behaviours?

  1. [14]
    Every year, all staff members at the School are required to undergo mandatory staff training in child protection, professional standards, workplace safety, ethics, and information privacy. During this training, all staff members are reminded of the many aspects of the term ‘boundaries’ that apply to any employee who has contact with children.
  2. [15]
    The Counsellor at the teacher’s school provided face-to-face child protection training to staff, teachers, and students every year and had done so for seven years.[6] More importantly, those seven years were the years between the beginning of the teacher’s concerning behaviours (2007) and his subsequent suspension (2014).
  3. [16]
    The agreed details of the individual experiences of the five children with the teacher indicate the number of times the teacher ignored his responsibility to maintain appropriate professional boundaries with his students.
  4. [17]
    One basis for the crossing of boundaries in this matter is in the physical touching of students, which appears to have started when the teacher began massaging students because they were experiencing pain after exercise training. Although he was a sports coach there is no evidence that the teacher was professionally qualified to undertake this therapeutic task. From the documents presented to the Tribunal, the teacher claimed to have a qualification of Dip. Sports Injury Therapy. There was no evidence of the date of this qualification.[7] There were no copies of qualifications, certified or otherwise, provided. The Tribunal does not accept that the teacher had any qualifications to massage students.
  5. [18]
    In addition, the teacher attended what could reasonably be described as a professional development opportunity at his school in 2008. This course participation was undertaken over a couple of weekends. Again, there was no adequate dated documentation provided, however, in any case it could not be considered a professional qualification.[8]
  6. [19]
    During the District Court trial, a paediatric physiotherapist gave expert opinion about massaging the hip flexor on a 10 to 13 year-old male child saying that

I personally would never do that in my practice. It’s quite uncomfortable and it would be unnecessary. I would use something else, like exercise – rest, first of all, and exercise to strengthen other muscles.[9]

  1. [20]
    The teacher was massaging children who complained of pain. Often this massaging happened in his classroom. Most children said there were other children in the room at the time. This method of treatment presents a lack of privacy for children of the ages involved, and a number of the children reported that they felt ‘uncomfortable’ about the treatment.[10]
  2. [21]
    The physiotherapist provided further opinion on this topic for boys specifically from 10 to 13 years.[11] She said:

Privacy could be ensured by such actions as:

- Providing assessment and treatment for the child (with the parent present) in a treatment room/ cubicle, where the child cannot be seen by any person not involved in the session (except the parent and therapist)

- If exposure of a body part is required for examination or treatment (e.g. muscles of the leg or buttocks), then using towels or sheets to drape (cover) adjacent body parts.

  1. [22]
    A further instance of the teacher crossing an appropriate professional boundary is the agreed fact that Child 3 was alone in a vehicle with the teacher on the way to an event.[12] Child 2 also reported an instance where he was alone in the teacher’s vehicle having been dropped home after running at the University of Queensland.[13] During child protection training the school counsellor specifically addressed this issue in the following manner:

I talk to teachers about protecting students, as well as themselves, covering themselves in relation sending to me or the Principal if they are doing after hours tutoring, if they are in a classroom with a student by themselves they are to leave the door open, the blinds up; not be alone in a vehicle with a student unless it is an extreme circumstance and then an email or phone call needs to be made to me or the Principal.[14]

  1. [23]
    The police records of interview of the children connected with the teacher contain many references to favouritism, sitting on the teacher’s lap, hugs, arms around children, and accidental or deliberate touching of genitals. The veracity of these references is not in question. The evidence shows consistent and repetitive boundary-crossing by the teacher.

Findings and sanction

  1. [24]
    The teacher accepts and admits that his behaviour as a teacher and cross-country and sporting coach does provide grounds for taking disciplinary action.[15] The Tribunal is satisfied that the admitted behaviour does provide grounds for disciplinary sanction under the Act.[16] The ground for disciplinary action is found in section 92(1)(h) of the Act: ‘a 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’.
  2. [25]
    The Tribunal’s role is not to simply punish teachers. The QCT submits that the Tribunal should consider the following relevant elements which parallel the objects of the Act:[17]
    1. (a)
      protecting students from harm and not harming students;
    2. (b)
      maintaining only reasonable and appropriate physical interactions or contact with students; and
    3. (c)
      maintaining professional boundaries
  3. [26]
    The Tribunal is required to have regard to any relevant previous decision by a practice and conduct body.[18] This provides consistency in decision-making. The QCT has provided to the Tribunal what it contends are comparable cases. However, we are of the view that the circumstances surrounding the teacher’s conduct are distinguishable from those cases and that they provide little assistance.
  4. [27]
    The three cases are set out below.

Queensland College of Teachers v Robert Lee Saunders [2013] QCAT 478

Mr Saunders was a young teacher of less than two years of experience at his first instance of inappropriate behaviour. There was a pattern of repetitive inappropriate behaviour by Mr Saunders, in addition to a failure to accept the discipline given, and to show insight and remorse for his behaviour. He was given a disciplinary transfer but continued his inappropriate behaviours. These behaviours ranged from allowing two students to stay overnight for two nights without parental knowledge or permission, to regular texting to the same students, and permitting and assisting students to access restricted internet sites at school by using his personal log in and password. He hugged a student for doing great work, regularly purchased lunches for favourite students and met students alone in the classrooms. The behaviours of hugging students and being alone with them bear some similarity to the teacher’s behaviour.

  1. [28]
    However, Teacher CJK’s behaviours are considered to be far more serious than the behaviours displayed by Mr Saunders. In addition, the teacher was a very experienced teacher.

Queensland College of Teachers v Glen Paul Utz [2015] QCAT 247

  1. [29]
    In the second case, Mr Utz, a teacher of 33 years of age and seven years of experience, admitted to over 20 allegations of inappropriate behaviour, including massaging students. However, the overwhelming evidence of misconduct centred on the teacher’s refusal to learn from the disciplinary measures taken against him, and to show by his actions that he had found a level of insight and demonstrated remorse for his behaviour. In contrast with the Teacher CJK matter, the similarities of seriousness of and repetitive risks for harm from the inappropriate teacher behaviours by Mr Utz were of a far less serious level.
  2. [30]
    Teacher CJK’s behaviours are considered to be far more serious than the behaviours displayed by Utz. In addition, Teacher CJK is older and more experienced.

Queensland College of Techers v SEF [2017] QCAT 55

  1. [31]
    In this third case, teacher SEF having been acquitted of a serious offence (putting his arm around a year 6 girl and kissing her on the cheek) immediately began sessions with a psychologist following his suspension.[19] Four explanatory paragraphs of separate actions that SEF undertook to provide evidence of his new understanding about insight were provided.[20] SEF was further assessed by a clinical psychologist who attested positively to the teacher’s insight and understanding of the seriousness of the undertakings he gave to the Tribunal about remorse and future engagement with a mentor.
  2. [32]
    Unlike SEF, Teacher CJK has not provided any evidence of insight despite being out of the teaching profession for over four years. He has made shallow statements of remorse that lack a convincing understanding of ongoing harm to the children involved in his inappropriate behaviours. Teacher CJK has minimised his massaging behaviour of children by saying:

I now realise that this was naïve. I have learned from what has happened and understand how my conduct can have made some students feel uncomfortable or cause them distress. I am truly sorry for this.[21]

  1. [33]
    A similar massaging behaviour and lack of insight was evident in the Volkers case,[22] where the salient points of potential risk factors are summarised as follows:

… the alleged offending occurred over a period of years and was not an isolated incident; they involved a number of complainants; Volkers was in a position of trust; his behaviour caused harm to the complainants, including ongoing psychological difficulties extending into their adulthood. However, Volkers did not demonstrate any awareness, other than in a very limited manner, of the affect [sic] of his behaviour on the complainants.

  1. [34]
    The Tribunal was satisfied that Mr Volkers conducted himself inappropriately and not protectively with young women to whom he had a significant responsibility in his position of trust. The Tribunal stated that ‘his admitted behaviour transcends a certain “casualness of approach” viewed in the context in which it occurred and by any interpretation could not be regarded as innocent.’[23] His positive notice to receive a Blue Card was denied. The Tribunal has noted the similarities between the behaviours and responses of Mr Volkers and Teacher CJK.

What are the aggravating and mitigating factors?

  1. [35]
    Examining the aggravating and mitigating factors in any case is essential to fairness. The Tribunal has taken all these factors into account in making our decision. Aggravating factors include:
    1. (a)
      the lack of evidence that the teacher accepts or acknowledges his conduct was inappropriate, or that he has reflected on the appropriateness of this conduct or the potential harm caused to the students involved, or the steps that he has taken to ensure that he will not engage in such conduct in the future;
    2. (b)
      the students were young and vulnerable;
    3. (c)
      the emotional and psychological impact on the students involved;
    4. (d)
      the lack of acknowledgement of the disrespect that the teaching profession, schools, staff, and community at large undergo when matters of this serious nature arise in any school;
    5. (e)
      the lack of insight as to the trauma experienced by each child as they explained the teacher’s behaviour to their friends, the school counsellor, their parents, the police, and then at a trial;
    6. (f)
      the teacher was a very experienced teacher at the time of his inappropriate behaviour;
    7. (g)
      the teacher was 41 years old at the time of the first incidence of his inappropriate behaviour (2007).

Mitigating factors include:

  1. (a)
    that the teacher has been unable to teach since 28 July 2014;
  2. (b)
    that prior to the first incidence of inappropriate behaviour (2007) the teacher’s record was unblemished;
  1. (c)
    that the teacher often went above and beyond his duties as a teacher and sports coach in his own free time.
  1. [36]
    The Tribunal has found that the ground for disciplinary action under section 92(1)(h) of the Act is established.
  2. [37]
    With regard to the serious, extended and repetitive nature of the conduct in this case the Tribunal considers that the risk of harm to children in allowing the teacher to apply to return to teaching is too great.
  3. [38]
    We therefore consider the sanction proposed by the QCT to be appropriate:
  1. (a)
    the Respondent’s teacher registration is cancelled pursuant to section 160(2)(d) of the Act;
  1. (b)
    the Respondent is prohibited from reapplying for registration indefinitely under section 160(2)(j) of the Act.

Should a Non-Publication Order be made?

  1. [39]
    It is not in the public interest to publicly identify the children or school. The children are vulnerable. Publication of identifying details could harm the children by affecting their reputation and lead to further victimisation.
  2. [40]
    We therefore consider it is in the interests of justice to make an order prohibiting the publication of any information in these proceedings[24] that could identify the children in any way, including their names and addresses, the teacher and the school involved.

What are the appropriate Orders?

  1. [41]
    The Tribunal does not make its disciplinary decisions in order to punish, but to protect. One responsibility listed among many under the QCAT Act is for the Tribunal to be fair.[25]In this case the opportunity to provide a strong example for deterrence of this type of behaviour by a teacher is taken. The names of the children, other staff members and the school inadvertently involved have been protected in these reasons.
  2. [42]
    The Tribunal makes the following orders:
  1. The teacher registration of Teacher CJK is cancelled pursuant to section 160(2)(d) of the Act;
  1. Pursuant to section 160(2)(j) of the Act, Teacher CJK is prohibited from re-applying for registration until further order of the Tribunal; and
  1. Other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information which may identify any relevant student, or the relevant school.

Footnotes

[1] Schedule 3 of the Act – Definitions of ‘approved teacher’ and ‘relevant teacher’.

[2] Defined in Schedule 3 of the Act.

[3] Section 92(5) of the Act.

[4] Section 92(3) of the Act.

[5] Joint Statement of Facts and Issues in Contention pp 3-8.

[6] Examination-in-chief, QCT documents p 486, 40, 45.

[7] Staff Information, QCT documents p 643.

[8] Annexure CJK 2 to the Respondent’s Submissions.

[9] Examination-in-chief QCT documents p 572, 45.

[10] Police Record of Interview, QCT documents, Child 2: p 122, 50; p 123, 55; p 127, 50; p 128, 45;
p 138, 15; Child 1: p 155, 30.

[11] Opinion, QCT documents, 94.

[12] Joint Statement of Agreed Facts, 43.

[13] Police Record of Interview, QCT documents p 131, 15.

[14] Witness statement of School Counsellor, QCT documents p 31, 5.

[15] Affidavit Teacher CJK 29.11.18, 29.

[16] EQCT Act s 158.

[17] QCT Submissions 25.10.2018, 86.

[18] Ibid.

[19] Queensland College of Teachers v SEF [2017] QCAT 55, 54.

[20] Ibid 57, 58, 59, 60.

[21] Affidavit Teacher CJK, 29.11.2018, 27.

[22] Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243, 62, 65, 66.

[23] Ibid p 11, 65.

[24] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

[25] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 1(3)(b).

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher CJK

  • Shortened Case Name:

    Queensland College of Teachers v Teacher CJK

  • MNC:

    [2019] QCAT 115

  • Court:

    QCAT

  • Judge(s):

    Presiding Member Hughes, Member Quinlivan, Member Robyn Oliver

  • Date:

    24 Apr 2019

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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