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Queensland College of Teachers v Teacher HFE QCAT 215
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Queensland College of Teachers v Teacher HFE  QCAT 215
QUEENSLAND COLLEGE OF TEACHERS
Occupational regulation matters
2 August 2019
30 April 2019; 1 May 2019
EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – where teacher taught manual arts in workshops – where teacher did not enforce safety guidelines – whether teacher failed to adequately supervise students
Education (Queensland College of Teachers) Act 2005 (Qld), s 92(1)(h)
Queensland College of Teachers v Caldwell  QCAT 229
REASONS FOR DECISION
- HFE is a high school teacher of Industrial Design Technology (formerly known as manual arts). Queensland College of Teachers (‘QCT’) has referred a disciplinary matter in respect of HFE to the Tribunal. QCT contends that a disciplinary ground exists under section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘Teachers Act’): ‘the person behaves in a way … that does not satisfy the standard of behaviour generally expected of a teacher’.
- The referral relates, broadly speaking, to alleged failure by HFE to properly supervise students in workshops. While it is not suggested that any students were injured, QCT says inadequate supervision was risky because of the hazardous equipment.
- HFE has been suspended from the teaching profession since 5 October 2017 because of the disciplinary investigation and referral. He does not agree that the disciplinary ground is established.
- The Tribunal conducted a two day hearing, during which we watched several videos of classes. This footage was taken by fixed cameras that, it seems, record all classes in the workshops. The presence of the cameras is known to teachers and students.
- There was not enough time to finalise oral submissions at the hearing, so the parties have since made written submissions.
The conduct in question, and whether the disciplinary ground is established
- The overarching allegation made by QCT is that HFE failed to adequately supervise students and/or maintain a safe learning environment. We will summarise below each aspect relied on by QCT.
Student removing screws from a door hinge
- QCT says that on 16 June 2016 HFE failed to observe a student removing screws from a door hinge. No video footage of this incident has been provided. It is undisputed that HFE made an official report of the incident at the time, and that the school imposed a suspension on the student as a result. It is not suggested that the door fell off: apparently only one of the hinges was affected.
- HFE’s account of the incident is as follows. The door in question was to a storeroom which opened off the workshop where the class was conducted. The student had gone into the storeroom to collect his partly-completed project. Meanwhile, HFE was dealing with another student in the workshop. The student in question was out of sight, and HFE did not see him remove the screws. HFE later discovered the screws were missing, and he viewed video footage to find the culprit. HFE reported the matter to the Head of the Industrial Design Technology Department
Students letting off a fire extinguisher
- QCT says that during the same lesson on 16 June 2016, HFE allowed students to set off a fire extinguisher.
- Again, no video footage has been provided.
- HFE’s account of the incident is as follows. The extinguisher was at the back of the workshop. He was at the front. The students let the extinguisher off without warning. He had no way of stopping them. He therefore takes issue with the suggestion that he allowed the students to do what they did.
Radial saw incident
- It is undisputed that on 4 August 2016, a senior student using a radial saw cut into a nut on the guide fence of the machine.
- No video footage has been provided.
- The Industrial Technology and Design Guideline, produced by the Education Department for staff, categorises radial arm saws as ‘restricted equipment’. This means that they should be used only by teachers, or by senior students working under the close supervision of a teacher.
- HFE’s account of the event is as follows. He had set up the student and another student in a workshop to use the machine. Both were trustworthy, and had previously used the machine. Meanwhile, HFE was in the adjacent workshop with the remainder of the class, near the interconnecting roller door. There was another teacher in the workshop where the radial saw was kept, and HFE asked that teacher to keep an eye on the two students, though in cross-examination HFE conceded that he did not ask that teacher to directly supervise them. When the accident happened, the student immediately reported it to HFE. HFE would not characterise the incident as a ‘major dangerous event’, but there is a risk with that type of accident of the blade shattering and therefore of people being struck with flying debris. HFE also acknowledges that with such machinery, there is always a risk of users injuring themselves by cutting off a finger, for example. HFE reported the accident at the time to the Head of Department.
Pneumatic rivet gun
- QCT says that on 6 October 2106 HFE failed to ensure the proper use of a pneumatic rivet gun by allowing students to walk around the workshop holding the gun and aiming it at each other.
- There is clear video footage of students playing with the unloaded gun during class. It is apparent that when fired, the gun would release a puff of air.
- HFE’s account of the incident is as follows. He did not allow the students to play with the rivet gun. When he saw them doing so, he told them to stop and warned them of the dangers.
- It is undisputed that year 9 students are not authorised to use the bench grinder, and that for students or indeed any other persons who are authorised to use it, goggles and ear protection are mandatory. Further, only one student at a time should be at a machine that is behind the safety line, such as the bench grinder.
- QCT alleges that on 13 October 2016 HFE failed to ensure that one or more year 9 students did not use the machine. Further, goggles and ear protection were not used by those students, and on occasion there were two students at the machine.
- There is video footage of year 9 students using the bench grinder.
- HFE, however, takes issue with the description of him allowing the conduct. Rather, he says, it was a case of students failing to comply with known rules. HFE also says that the school should not have allowed the grinder to be located in a junior workshop.
- QCT alleges that on 6 and 13 October 2016 HFE failed to ensure the proper use of the metal cutting guillotine by variously allowing students to use the machine without goggles (as required in a Standard Operating Procedures sheet produced by the Education Department) and to jump, sit or stand on the treadle.
- There is ample video footage of students playing with the guillotine in the way alleged.
- HFE’s account of the incidents is as follows. He did not allow students to play on the guillotine. When he saw them doing so, he told them to stop. If they defied the command, he gave them detention. He had previously asked the Head of Department to have the guillotine locked, and it was only after the incidents in question that this was finally done. He does not believe that there is a need for goggles when using the guillotine, given its design. Goggles have never been required in his experience in industry and other schools, or by colleagues at the school in question. In fact, goggles would create danger through glare. While the safety guidelines are definitely warranted for machines such as the bench grinder, the guidelines for a machine such as the guillotine are generic ones produced by bureaucrats.
- It is undisputed that goggles are required when using band saws.
- QCT alleges that on four dates in October 2016 HFE allowed students to operate a bandsaw without wearing goggles.
- There is video footage of some students doing so.
- HFE’s account of events is as follows. He did not allow the conduct. He had instructed students that goggles were to be worn when using power tools. When he observed students failing to observe this requirement, he would switch the power off and tell them to put on goggles.
HFE’s absences from workshops
- QCT alleges that on three dates in October 2016, HFE left students unattended for periods in workshops.
- HFE’s absences can be seen on videos. HFE can be seen, for example, going into a storeroom adjacent to a workshop, or into an adjoining workshop, before returning some time later. QCT has calculated that the total period of absence for one senior class was as high as 35 minutes during a 70 minute session. There were also considerable, though shorter, periods of absence in other sessions.
- A statement from the Head of Department indicates that there were no rigid rules around absences, but best practice would be to avoid absences without alternate supervision as far as possible, and to keep any absences minimal. The Head of Department attributes many of the absences to HFE having to collect resources because of inadequate preparation.
- HFE’s account is as follows. He would be absent while going to an adjacent workshop, for example to assist students who needed to use a particular machine that was not available in the class workshop. He would also ask the teacher in the adjoining workshop to keep an eye on the students. Students who were left alone were senior students, and they were told to work with hand tools on their benches rather than on the power tools located around the perimeter behind a safety line. All students had completed the On Guard safety training at the start of the year. He was nearby, and there were some very trustworthy students who would have alerted him to any problems.
Mobile phone use by students
- QCT alleges that on several dates in October 2016, HFE failed to prevent students using their phones in the workshops. QCT contends that the distraction caused by phone use is especially risky in a workshop on account of the power tools and equipment.
- The school had a Technology Device Etiquette guideline which said that the use of personal devices was not encouraged, and devices could be used in class only with the permission of a teacher for a particular task.
- Video footage shows quite a few students using phones in class, not apparently for any subject-related purpose.
- HFE’s account of events in his August 2018 response was as follows. He would tell the students to put their phones away before class. If they took them out during class, he would give them detention. However, in cross-examination HFE effectively conceded that he did tolerate some phone use if it meant that students were being quiet rather than disruptive. HFE also pointed out that students can have study-related reasons for using their phones, such as photographing completed work for their portfolios.
Whether HFE monitored classes sufficiently
- According to the Head of Department, HFE had ‘struggled at times’ over the years with managing students, and so the Head of Department sent him on some courses. HFE attended a two day course called ‘Managing an ITD Workspace’ in 2012, which was focussed on ensuring student safety. Further, in 2015 he attended ‘behaviour management professional development’. (The Head of Department’s statement does not indicate whether this was a seminar or a longer course). The Head of Department also says he spoke at times with HFE about strategies that he could use to assist his teaching. According to the Head of Department, after these discussions and training sessions, HFE would improve his methods for a short period but would then ‘lapse back into old ways’.
- QCT submits that supervision and maintenance of a safe learning environment are especially important in manual arts workshops as these are high-risk environments with cutting equipment, power tools and so on. QCT submits that there was there is the potential for significant injury if there is inadequate supervision.
- So far as the classes in October 2016 are concerned, QCT contends that some of the breaches of rules by students happened when HFE was in reasonably close proximity to the students in question. QCT in its referral said that even if HFE did not initially see conduct such as students using the bench grinder, he should have been alerted to it by noise. However, QCT also acknowledges that workshops are noisy, and there can be multiple simultaneous sources of noise. Further, HFE says that at the time in question his hearing was not optimal, as he was still getting used to hearing aids. We have no reason to doubt this evidence.
- That leaves the question of whether HFE sufficiently scanned the room with his eyes. QCT contends that he did not. HFE says he did, and that some of the scanning would not be obvious on the video footage because he did it quite discreetly. This was so that students would not be alerted to the surveillance.
- However, the videos show prolonged breaches of rules by students, especially with the episodes of students playing with the rivet gun or guillotine for up to several minutes. Particular instances of students using the band saw without goggles, or using the bench grinder, would have been harder to detect in a busy workshop, but even some of this occurred while HFE was nearby. The extent of rule breaches in some year 9 classes was such that HFE cannot have been monitoring the class adequately or, if he was, that he was choosing to only rarely intervene.
- In his statement of February 2019, HFE described his disciplinary strategies such as shutting down the workshop if students misbehaved in an unsafe manner, and then talking to them about the incident and associated risks. He says that sometimes he would respond by taking students into a theory room for a theory lesson on safety. Sometimes he would impose detention, send students to a buddy class, or impose a workshop ban on particular students. Further, when required, he would arrange for the Head of Department to talk to the students about safety, HFE said.
- In the video footage of the more unruly classes shown in the hearing, there are occasions when HFE did intervene by turning power off for the bench grinder and/or chastising students in relation to their use of the bench grinder, rivet gun and guillotine. What he said is not evident because the footage is all silent. HFE may have been imposing detentions, for example. We did not observe any interventions with students using the band saw without goggles. We can accept that HFE on occasions has used the disciplinary strategies described in his statement, but the overwhelming impression we gained from the video footage is that there was very little discipline. Some of the classes were quite chaotic. For example, in many instances HFE can be seen helping a small group of students with their tasks, or marking work at the teacher’s bench, while apparently oblivious to the fact that several students were playing with the rivet gun or using the guillotine as an exercise machine, and that others were chatting and/or checking their phones. On some occasions a year 9 student would be using the bench grinder, the use of which produces sparks. All of this points to a lax and somewhat erratic approach to classroom discipline on the part of HFE.
- It is unknown to what extent HFE failed to notice much of the misbehaviour or was aware of it but chose to tolerate it.
- We appreciate that it can be a challenging task, for many teachers at least, to maintain discipline, especially with year 9 students. We also appreciate that there will be times when a teacher’s attention is necessarily focussed on an urgent task. However, in many instances shown in the video footage, HFE was either oblivious to the need to enforce rules or made little effort to do so.
- HFE says that the Head of Department raised concerns with him in October 2016 and showed him some of the video footage. HFE says this caused him to realise that he should scan the room more frequently, and that he should adopt a different system for students needing to use certain equipment, namely allotting a set time in the lesson for students to do so under his supervision. However, HFE says he did not have a chance to implement these new strategies because he was suspended from his job.
- Overall, we consider that the video footage shows that HFE failed to provide adequate supervision of classes and that this increased the risk of student injury.
- For the incidents where there is no video footage, we note that there are also no statements from the students that might fill the gap. Given the serious impact of the allegations, we must be careful not to find against HFE on the basis of ‘inexact proofs’ or speculation. It is also important to remember that a standard of perfection is not required. Rather, a teacher is expected to meet a reasonable standard. The meeting of a reasonable standard does not guarantee the absence of misbehaviour by students.
- So far as the removal of screws from a door hinge and the letting off of the fire extinguisher are concerned, we consider that these things could have happened even if the teacher was appropriately supervising the class. Accordingly, we are not satisfied that they demonstrate a failure on HFE’s part to meet a reasonable standard.
- The incident with the radial saw is in a different category. Under the Departmental Guideline, HFE should have ensured close supervision by himself or another teacher of the student using the saw. That did not happen. In light of the safety risks, and notwithstanding HFE’s confidence in the student in question, we consider that HFE’s conduct fell short of a reasonable standard for a teacher.
- In respect of the other matters – involving the bench grinder, band saw, rivet gun, guillotine, phones and teacher absences – we do not proceed on the basis that every particular instance involved a failure to meet a reasonable standard. Some of that behaviour could have occurred even with a quite vigilant teacher. Further, while QCT has described HFE as allowing certain conduct, we note that he did not positively encourage that conduct. A better description would be that he tolerated it.
- However, the pervasive extent of misbehaviour, departure from rules, and absences was such that we find that there was a substantial failure on HFE’s part to properly supervise students and to maintain a safe learning environment.
- HFE’s lawyer submits that the fact that some direction or protocol has been breached is not determinative: it is but one factor to be considered. We accept this.
- Further, HFE’s lawyer submits that given that the Teachers Act is an occupational discipline statute, before a finding could be made that behaviour fell short of the standard of behaviour generally expected of a teacher, the behaviour in question must be of such ‘significance, seriousness or gravity as to justify an adverse finding’ under section 92(1)(h).
- That submission may be open to debate, but it is not necessary for us to explore this. This is because even applying that approach, we are satisfied that the relevant conduct was of sufficient gravity to justify an adverse finding.
- The problem was not primarily one of HFE placing students in imminent danger. It was more a problem of such a lax atmosphere prevailing. In a risky environment such as the workshops, the emphasis should have been on meeting safety rules (whether or not HFE agreed that a particular rule was necessary) and on being alert and available to respond to any emergency that might arise. That emphasis was quite lacking.
- We find that HFE did not satisfy the standard of behaviour generally expected of a teacher. Therefore the ground for disciplinary action is established.
What action, if any, should be taken?
- Where the Tribunal finds that a ground for disciplinary action is established, the options range from taking no further action against the teacher through to cancelling the teacher’s registration and prohibiting re-registration.
- QCT submits that the appropriate action would be to cancel HFE’s registration, and to direct that a notation be entered in the register of teachers that any application for re-registration be accompanied by information showing that HFE has completed certain retraining. The retraining proposed consists of an online course called Managing Behaviour for Learning, or an equivalent approved by QCT, and a course approved by QCT that will address the management of risks in manual arts workshops.
- HFE’s lawyer submits that the appropriate action, in the event of the Tribunal concluding that a disciplinary ground is established, would be to suspend HFE’s registration for six months, but to then suspend the suspension subject to any further ground for disciplinary action arising. Further, HFE must at his own expense complete an appropriate retraining program about supervision strategies for a teacher in the manual arts workshop environment. It is submitted that the course should be one approved by QCT. HFE’s lawyers have provided details of a suggested course. It is an individually tailored course in professional practice.
- It is common ground between the parties that the purpose of disciplinary action is not to punish a teacher, though as QCT notes, individual and profession-wide deterrence can be a relevant factor. The Tribunal must be mindful of the objects of the Teachers Act which include upholding standards in the profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional and competent way.
- We are not aware of any other cases that are closely comparable to HFE’s, and the parties are in the same position. QCT has suggested some cases as possibly offering some guidance. One involved a teacher who had negligently caused physical harm to her own children; another involved a teacher swearing at students and making disparaging remarks; while a third involved a teacher who swore at and pushed students. The actions taken in those cases involved exclusion from the profession for between one and three years. However, we do not regard them as sufficiently similar to be of substantial assistance.
- Queensland College of Teachers v Caldwell involved a school principal who encouraged students to engage in risky outdoor activities such as cliff-jumping into the sea, trekking through a swollen creek, and fireworks. The main action taken by the Tribunal was to suspend his registration for six months, with the suspension being suspended for 12 months provided that no further disciplinary breach occurred.
- HFE’s lawyer submits, in effect, that HFE’s conduct is less serious because the behaviour of Mr Caldwell was quite reckless and extended to pushing a reluctant student off a cliff into the sea. However, we are not inclined to see HFE’s conduct, overall, as less concerning. On the other hand, HFE has been subject to a long period of suspension, which was not the case for Mr Caldwell.
- In HFE’s favour, we note that in the videos, despite the shortcomings in behavioural management and the likely shortcomings in preparation, HFE did seem diligent in helping individual students and concerned about their educational progress. He has also expressed some, although limited, insight into the need for improvement.
- We do not know whether HFE’s failure to take fuller responsibility for his shortcomings is due to a lack of insight or an unwillingness to admit the extent to which he fell short.
- We are also mindful that HFE has completed behaviour management courses in the past which have apparently had only limited benefit. However, we accept that some further retraining is warranted. We believe that HFE would now be more highly motivated to implement behavioural management strategies, having experienced the significant repercussions of his shortcomings in 2016.
- The course types proposed by QCT appear a little more targeted to HFE’s deficits than the more generic one suggested by HFE’s lawyer.
- Considering all of the circumstances, particularly the long period of suspension already served by HFE, we do not consider that action as harsh as cancellation is warranted. We consider that the appropriate action is to continue HFE’s current suspension until he has obtained approval from QCT to undertake suitable courses, has completed the courses successfully, and then QCT has notified him in writing that it is satisfied that he has done so.
- HFE relies on a psychological report by Mr Malcolm Mackenzie dated 4 June 2019 indicating that he has been treated for some time for anxiety, stress and depressed mood. According to Mr Mackenzie, HFE suffers from adjustment disorder with anxiety and depressed mood. Mr Mackenzie says that publication of HFE’s name in association with the conduct in question would be detrimental to his mental health.
- QCT does not oppose the making of a non-publication order. On the basis of Mr Mackenzie’s report, we accept that such an order is appropriate.
- It is also appropriate to extend the non-publication order to the students involved. They should not be subject to public humiliation as a result of being caught up unwittingly in a disciplinary proceeding.
- Having found that a ground for disciplinary action is established, we consider that the appropriate order is to require HFE to undertake retraining before his current period of suspension can end.
- Published Case Name:
Queensland College of Teachers v Teacher HFE
- Shortened Case Name:
Queensland College of Teachers v Teacher HFE
 QCAT 215
Member Kanowski, Member Goodman, Member Grigg
02 Aug 2019