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Queensland College of Teachers v PPK[2019] QCAT 59

Queensland College of Teachers v PPK[2019] QCAT 59

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v PPK [2019] QCAT 59

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

v

PPK

(respondent)

APPLICATION NO/S:

OCR178-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 March 2019

HEARING DATE:

20 August 2018

HEARD AT:

Brisbane

DECISION OF:

Member Grigg

Member Goodman

Member Traves

ORDERS:

  1. The disciplinary ground in s 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) is established.
  2. The Queensland College of Teachers must file two (2) copies in the Tribunal and give one (1) copy to PPK of any submissions as to sanction by 4:00pm on 25 March 2019.
  3. PPK must file two (2) copies in the Tribunal and give one (1) copy to The Queensland College of Teachers of any submissions as to sanction in response by 4:00pm on 8 April 2019.

CATCHWORDS:

EDUCATION – SCHOOLS – GOVERNMENT SCHOOLS – TEACHERS’ EMPLOYMENT AND CONDITIONS OF SERVICE – DISCIPLINARY MATTERS - teachers’ employment and conditions of service – disciplinary matters – sexual intercourse with 18-year-old year 12 female student – where teacher and student met on Tinder while student in year 12 at same school as teacher – where contact between teacher and student while teacher at same school limited - where intercourse took place while student in year 12 but teacher then teaching at different school – where teacher and student engaged in further acts of sexual intercourse after student left school – whether conduct is relevant to s 92(1)(h) – whether test of ‘standard of behaviour’ requires that conduct in question has as its origin a teacher/student relationship – whether element of exploitation or breach of trust by teacher required – whether behaviour not that generally expected of a teacher.

Education (Queensland College of Teachers) Act 2005 (Qld), s 3(1), s 12, s 92(1), s 97, s 161, Schedule 3

Queensland College of Teachers v Derbyshire [2011] QCAT 536

Queensland College of Teachers v DGM [2018] QCAT 194

Queensland College of Teachers v SGS [2017] QCAT 383

REPRESENTATION & APPEARANCES:

 

Applicant:

C Lloyd, Queensland College of Teachers

Respondent:

A Knott & D Quinn, Holding Redlich

REASONS FOR DECISION

Introduction

  1. [1]
    This matter arises from a mandatory referral by the Queensland College of Teachers[1] to the Tribunal under s 97 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Education Act’).[2] The essence of the referral is that PPK, a high school teacher, failed to maintain appropriate professional boundaries with student A while she was at school and after her graduation and as a result had behaved in a way not generally expected of a teacher under s 92(1)(h) of the Education Act. PPK maintains that s 92(1)(h) has not been established, in particular because, although he was a teacher while student A was in year 12 at the same school, he was never in a direct teacher/student relationship with her and that student A was not therefore a ‘student’ or ‘former student’ with respect to him. The College accepts that there was no direct teacher/student relationship between them.[3]
  2. [2]
    Under s 97, if the College reasonably believes that one or more grounds for disciplinary action against a ‘relevant teacher’ exist, the College must refer the matter to a disciplinary body. In relation to this matter, the relevant body is the Queensland Civil and Administrative Tribunal (‘the Tribunal’).[4] The College is required to inform the Tribunal about the grounds for the practice and conduct matter and the facts and circumstances forming the basis of the grounds.[5] The Tribunal must then conduct a hearing and, as soon as practicable after finishing the hearing, make a decision about whether a ground for disciplinary action against the teacher has been established.[6] The Tribunal is to make its decision based on the information provided to it by the College.[7]
  3. [3]
    ‘Relevant teacher’ is defined to mean either an approved teacher, or a former approved teacher.[8] PPK is an approved teacher, being currently registered as a teacher in Queensland, having first gained registration on 21 January 2003.[9] It is noted that PPK’s registration was suspended by the College on 18 January 2017 on the basis he posed an ‘unacceptable risk of harm to children’. This suspension was continued by the Tribunal on 29 March 2017.[10]
  4. [4]
    The issues to be determined by the Tribunal are:
    1. (a)
      whether a ground for disciplinary action is established; and
    2. (b)
      if so, the appropriate sanction to be applied.
  5. [5]
    The referral of disciplinary proceedings was filed on 12 September 2017. That referral identified the relevant ground for taking disciplinary action to be s 92(1)(h) of the Education Act.

The disciplinary ground in s 92(1)(h)

  1. [6]
    Under s 92(1)(h), a ground for disciplinary action exists if:

…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. [7]
    Section 92(1)(h) was a recent amendment to the disciplinary ground,[11] which previously provided that a disciplinary ground was established when a teacher ‘is not suitable to teach’. The amendment to s 92 and other relevant provisions was effective from 8 September 2016. The transitional provisions do not apply to the circumstances in this matter.[12] Accordingly, the referral to the Tribunal is on the amended ground for discipline under s 92(1)(h).
  2. [8]
    The respondent argued that the amended ground in s 92(1)(h) merely clarifies the previous ground which was established when a teacher ‘is not suitable to teach’ and, was not, therefore, wider in scope.[13]
  3. [9]
    The ground in s 92(1)(h) was amended by the Education and Other Legislation Amendment Act 2016 (Qld). Section 92 was amended at the same time as s 12, which outlines when a teacher will not be suitable to teach for the purposes of registration.
  4. [10]
    The Explanatory Memorandum provides, relevantly:

Clause 19 amends section 12(3) to clarify what is meant by not suitable to teach for the purpose of registration. Amendments are also proposed to clarify what is meant by not suitable to teach for the purpose of disciplinary action (see clause 51).

The clause amends section 92(1)(h) to clarify what is meant by “not suitable to teach” as a ground for disciplinary action. The revised definition covers lower end behaviour (for example that may warrant a reprimand) through to significant misconduct (for example that may lead to suspension or cancellation).[14]

  1. [11]
    The respondent argues that ‘lower end behaviour’ was always included, both as interpretation and practice in the application of s 92(1)(h) as previously worded.
  2. [12]
    Whether the ground is the same or has been broadened[15] so that it now catches conduct at the lower end of the behaviour spectrum, is not necessary for us to decide. This is because we have decided that the ground is established in any event.
  3. [13]
    The ‘standard of behaviour generally expected of a teacher’ is not defined. In our view, ‘generally expected’ means by the community and by the teaching profession.[16] In this respect, the Code of Ethics for Teachers in Queensland is relevant.[17] As provided in s 292 of the Education Act, a code of practice may be used to provide evidence of appropriate professional conduct or practice for the teaching profession.
  4. [14]
    In our view there is a difference in power and authority between a teacher and student and generally a high level of trust placed by the student and their family in the teacher. There is also an expectation by the student and their family that the teacher will behave in a way generally expected of a teacher. This trust and expectation exists not only where the student is an immediate pupil of the teacher but more generally (even where the immediate relationship does not exist) by reason of the fact that the person holds the position of teacher. We are also of the view that the differences in power and authority which exist create an imbalance between the teacher and student which can continue even after the teacher or student leaves the school. The imbalance can last for some time and is not generally something that can be immediately extinguished at a particular point in time. These imbalances reduce the quality and relevance of the student’s consent to be involved in the relationship and to what degree.[18]
  5. [15]
    This finds corroboration in the Guideline published by the College titled Professional Boundaries: A Guideline for Queensland Teachers.[19] The Guideline was tendered by the respondent. Although the Guideline is not a statutory Code, we consider it of some relevance to the question of what behaviour is generally expected of a teacher. In this respect we have also been referred to the Standard of Practice which supports the Code of Conduct for the Queensland Public Service.
  6. [16]
    The Guideline describes the nature of the teacher/student relationship as follows:

Teachers must act professionally at all times in their relationship with students.

The teacher/student relationship is not equal. Teachers are in a unique position of trust, care, authority and influence with their students, which means that there is always an inherent power imbalance between teachers and students.

….

  1. [17]
    The respondent seeks to distinguish his situation from those where professional boundaries were transgressed on the basis that he never actually taught Student A (though he did supervise her exam and was known to her as a teacher at her school) and there was no relevant ‘power imbalance’ between them. We have considered this submission below.

Relevant facts

  1. [18]
    PPK was registered as a teacher in 2003 and employed as a teacher at XY High School between 22 February 2016 and 8 July 2016 where student A at that time was a year 12 student. PPK taught at a different high school from 11 July to 25 November 2016.
  2. [19]
    Student A turned 18 in April 2016 when she was in year 12. PPK was at that time 38.
  3. [20]
    Student A moved out of her family’s home in May 2016 to live with her then boyfriend.
  4. [21]
    It is accepted that there was no direct student/teacher relationship between Student A and PPK for the time PPK taught at XY High School. However, there was some contact between them. PPK taught Student A’s sister, Student B. He was Student B’s year 10 science teacher in 2016. Sometime in the first half of 2016 Student A attended a student/teacher meeting between her mother, student B and PPK. Student A was not in school uniform at the time.
  5. [22]
    On or about 14 June 2016, PPK supervised student A’s year 12 Maths A exam. They spoke during the exam about the paper and after it about a cut PPK had on his face from football.
  6. [23]
    Student A says that, when asked about any other contact she had with PPK after the exam that she would ‘see him walking around and say hello but that was about it’.[20] When asked to elaborate she said: ‘It wasn’t anything big. It was just like smile, wave hello and keep going on with the day. There was no conversation really’.[21]
  7. [24]
    Student A said that she first met PPK on Tinder around March 2016 but that she was then in a relationship for 6 months so stopped talking to him. Student A said that she broke up with her boyfriend on 31 October and reconnected with PPK on Tinder on 1 November 2016. She says that on Tinder they had a conversation whereby he said he was a teacher and that she then realised and PPK confirmed that it had been he who had supervised her maths exam. Student A also realised that he was her sister’s teacher, and telephoned her sister to tell her that she was seeing her science teacher.[22]
  8. [25]
    PPK maintains that on 2 November 2016 he randomly matched with Student A on the social dating application known as Tinder. He maintains that prior to this time he had no contact with her as a teacher or in the community and had no prior communication with her.[23] PPK says that they exchanged telephone numbers on Tinder and then became friends on Facebook. He states that ‘in further communication via both avenues I ascertained that she had finished school’[24] and that ‘given [he] had believed that there was no student-teacher relationship [the] consensual interaction developed further’.[25]
  9. [26]
    This is inconsistent with text messages between them which show the relationship started when Student A was still at school and that PPK knew she was a student at XY High School where he had taught earlier in the year. This is clear from the following exchange of text messages on 3 November 2016:

PPK: What maths did u do?

Student A: I done maths B before you came but dropped to A….

PPK: Oh wow you are smart and hot, I’m impressed. Maths B is hard. Need to fully commit hey! I did the same. I dropped down. Other subjects were more interesting

Student A: yeah exactly and on a Friday night id much rather be out partying than studying for a math test 3 months in advance a haha…

PPK: Yer or this Friday getting your brains fucked out by me

Student A: …and honestly I am so sick right now I’m going to have to drug myself up so much to be better for tomorrow.

PPK:..I can wait if you feel crap tomorrow. But I def don’t want to wait lol. I’m so keen.

Student A: …not going to work tonight called in sick because I’m coughing and have a headache…so I can try recover tonight so I’m all good for tomorrow

PPK: Good girl [emoji].

PPK: If you’re a really good little girl tomorrow night and do everything I tell you to ill take you to honey Burdett one day before Xmas and you can buy yourself a present from me! Which ill then get to watch you undress in

  1. [27]
    PPK then sent a video of himself masturbating naked in the shower (but not showing his face) and requested photos of Student A’s breasts. Further highly sexualised texts were exchanged which culminated in PPK and Student A meeting at PPK’s house the following night where they engaged in sexual intercourse. PPK submits it is relevant that Student A drove 40 minutes to his place on that occasion.
  2. [28]
    Student A gave evidence that she had sexual intercourse with PPK on three other occasions: the night of her last day at school (18 November 2016); two or three weeks after her last exam (late November/early December 2016) and in late January/early February 2017.

Is the disciplinary ground in s 92(1)(h) established?

  1. [29]
    PPK admits to exchanging texts messages and to engaging in sexual intercourse with Student A on the occasions identified above. However PPK denies this behaviour does not satisfy the standard of behaviour generally expected of a teacher or that his behaviour was inappropriate. PPK also argues that he was not in a teacher/student relationship with Student A when the behaviour occurred and that when she left school could not, therefore, be regarded as a ‘former student’ of his.
  2. [30]
    PPK seeks to distinguish Queensland College of Teachers v SGS[26] and Queensland College of Teachers v Derbyshire[27] where in each case the teacher was disciplined despite there being no direct teacher/student relationship. PPK argues that his case is different because in those and indeed all other cases referred to by the College in its submissions, there was a clear power imbalance between the teacher and the student and an exploitation of the power and trust inherent in that relationship. This was not, PPK argues, the case here.
  3. [31]
    In support of his argument that there was no power imbalance, PPK referred to the following: Student A was an adult (from April 2016), she used Tinder; had left home early in 2016 to live with her boyfriend, had returned to her parents’ home and then left again; had a car; and drove 30-40 kilometres to PPK’s house for their first meeting and sexual interaction.[28]
  4. [32]
    The College submits that the standard of behaviour expected of teachers towards students is not confined to direct student/teacher relationships and that the professional behaviour expected of teachers towards students extends beyond the classroom and their immediate teaching relationships.[29] The College argues:

…even where there is no direct student/teacher relationship, as a matter of general principle, a teacher who enters into a sexual relationship with a student fails to behave in a way generally expected of a teacher. Such behaviour is contrary to the standards expected of teachers and the position of trust reposed in them by the community, it erodes public confidence in the teaching profession and compromises the integrity of the profession.[30]

  1. [33]
    The College argue that in circumstances where PPK knew that Student A was a student when the sexual relationship commenced, that the professional relationship, boundaries and behaviour generally expected of a teacher towards a student is the relevant standard against which PPK’s behaviour should be assessed.[31] That standard is not altered or diminished because Student A was not directly taught by PPK.[32]
  2. [34]
    Similarly, the College argue that cases concerning relationships between teachers and former students are relevant because Student A was a former student, albeit not a student of PPK’s.

Conclusion as to whether disciplinary ground established

  1. [35]
    The test in s 92(1)(h) is, in our view, a broad test which focuses on the behaviour of a teacher but not necessarily behaviour which occurs in the capacity of a teacher. This is made clear by the words ‘the person’ as opposed to ‘the teacher”’ and by the phrase ‘whether connected with the teaching profession or otherwise’. This means that PPK’s behaviour, to be relevant, does not need to be in the context of a teacher/student relationship or otherwise have occurred in his capacity as a teacher. When this is appreciated, the need for there to be a direct teacher/student relationship falls away.
  2. [36]
    The behaviour of PPK needs to be assessed in the context of the standard of behaviour generally expected of a teacher. This standard is a fluid one and informed by how the community, including the teaching profession, would expect a teacher to behave.
  3. [37]
    In our view, notwithstanding PPK did not teach Student A, at least by the time they had sexual intercourse, Student A knew he had been a teacher at her school and PPK knew she was a student at the school where he had recently taught. They were, for a time, at the same school and were known then to each other.
  4. [38]
    While we acknowledge that Student A was 18 and, compared to other year 12 students, relatively independent having moved out of home to live with her boyfriend, there was still, in our view, a power imbalance between them by virtue of his position as a teacher and hers as a student. There was also a significant age disparity between them. PPK was an experienced 38 year old teacher while Student A was an 18 year old student in year 12. The tone and urgency of PPK’s text messages generally and, in particular, his questions surrounding Student A’s experience with anal sex and sex toys was, in our view, predatory, overbearing and inappropriate.
  5. [39]
    We also disagree that the teacher/student dynamic was not relevant to or exploited in their relationship. We refer in this context to the following:
  • PPK called her a “good girl” when she told him she would come over at an invitation from PPK to “have her brains fucked out” even though she was sick;
  • PPK texted “maybe you should bring your uniform over tomorrow night [devil emoji]”;
  • PPK said words to the effect “I would have bent you over that desk after the exam”;
  • PPK said that, although they only had a short time until the end of the school year, that he had “plenty of time …to teach you a few lessons”;
  • PPK said “maybe by end of summer I can teach you to take me [emoji]…I’d be a great teacher”;
  • Student A said “I’ll be whatever you want to be sir, you’re the boss after all [winking emoji]”;
  • Student A called him “daddy”;
  • Student A said “mmm or maybe one day next week after I’ve finished my exams ill just come straight over from school and we can blow off some steam together…brb have to hand an assignment in by 5 and you are distracting me still have my conclusion to do”;
  • Student A tells her younger sister that Student A is sleeping with her year 9 science teacher.
  • Both joked about Student A helping PPK with his marking.
  1. [40]
    The situation is made worse, in our view, because PPK knew Student A was vulnerable. She called him when she had been physically assaulted by her then boyfriend and thrown out of their shared accommodation with nowhere to go.
  2. [41]
    We also find that PPK himself was aware that his conduct would be seen as inappropriate by others but chose nonetheless to proceed to have a sexual relationship with Student A. PPK told Student A not to tell her boyfriend about him, nor tell PPK’s flatmate she was a school student:

PPK: Can you just please make sure he doesn’t know who I am though as I’d be really worried about him being a dick and trying to cause trouble for me. And please don’t mention to anyone else if that’s ok. Cause I would get in serious trouble with my job. I just took you off FB too, Don’t freak out, only so he can’t be finding me. Seriously worried about that now. And prob also anyone else seeing we’re friends could be bad. (emphasis added)

  1. [42]
    And later:

PPK: Was slightly stressed.

Student A: I could tell ahaha I’m not that stupid (emoji) but I can help you mark tonight don’t stress I can give you massages and stuff while you do it.

PPK: Haaaaaaa I’ve done some pretty hilarious things in my time (and naughty) but I think getting you to help mark my year science 10 papers would be right up there (emoji).

Student A: Hahahaha well you’ve already fucked me, and well I might add, which I think is a little worse then me marking papers (emoji)

PPK: Great point

  1. [43]
    In our view, PPK wanted to conceal their relationship because he knew his conduct to be improper from a professional point of view. In his own words, if their relationship was revealed he would ‘get in serious trouble with his job’. We infer from this that PPK believed that his conduct fell below that generally expected of a teacher. The statement was, in effect, a clear, if implied, admission of wrongdoing.
  2. [44]
    Further, we do not accept submissions by the respondent to the effect that PPK’s conduct was private, between consenting adults and therefore should not affect his suitability as teacher. We were referred in this context to Hoile v Medical Board of South Australia[33] and to the fundamental legislative principles enshrined in the Legislative Standards Act 1992 (Qld) which, it was argued, should be taken into account when construing s 92(1)(h).[34] We find that the behaviour of PPK is relevant to s 92(1)(h). It is relevant because PPK was a teacher when it occurred and Student A was a student at the school where he had taught. Both individuals were aware of their respective status as teacher and student and, as we have outlined above, it influenced their relationship. PPK was also considerably older and necessarily more mature and experienced than Student A. Student A was also emotionally and financially vulnerable, having left home and, at one point, with nowhere to go after an altercation with her boyfriend.
  3. [45]
    We find, accordingly, that PPK behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher and, accordingly, that the disciplinary ground in s 92(1)(h) has been established.
  4. [46]
    The orders of the Tribunal are:
    1. The disciplinary ground in s 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) is established.
  5. [47]
    The Tribunal directs that:
  1. The Queensland College of Teachers must file two (2) copies in the Tribunal and give one (1) copy to PPK of any submissions as to sanction by 4:00pm on 25 March 2019.
  1. PPK must file two (2) copies in the Tribunal and give one (1) copy to The Queensland College of Teachers of any submissions as to sanction in response by 4:00pm on 8 April 2019.

Footnotes

[1]By the Professional Practice and Conduct Committee.

[2]Referral of 18 August 2017 from the Queensland College of Teachers to PPK.

[3]Submissions of Queensland College of Teachers filed 2 May 2018, [18].

[4]Education Act, s 97(2)(a).

[5]Ibid, s 97(4)(a).

[6]Ibid, s 97(4)(b), s 158.

[7]Ibid, s 97(4).

[8]Ibid, Schedule 3.

[9]Exhibit A to Affidavit of Carson James Lloyd of 25 January 2017.

[10]Queensland College of Teachers v PKP [2017] QCAT.

[11]Amended by the Education and Other Legislation Amendment Act 2016 (Qld).

[12]Education Act, s 363.

[13]Outline of submissions of respondent 20 August 2018, [9].

[14]Education and Other Legislation Amendment Bill 2016 Explanatory Notes, clause 51.

[15]As suggested in Queensland College of Teachers v DGM [2018] QCAT 194.

[16]Queensland College of Teachers v Armstrong [2010] QCAT 709; Queensland College of Teachers v CMF (No 2) [2016] QCAT 290, [24].

[17]Education Act, s 290

[18]Ibid; see also by way of analogy the law relating to undue influence: Johnson v Buttress (1936) 56 CLR 113, 134.

[19]Professional Boundaries: A Guideline for Queensland Teachers, Queensland College of Teachers, May 2016 (updated July 2017).

[20]Transcript of interview, 10-184.

[21]Ibid, 10-190.

[22]Ibid, 18-343.

[23]Affidavit PPK 15 March 2017.

[24]Ibid, [10].

[25]Ibid, [11].

[26][2017] QCAT 383.

[27][2011] QCAT 536.

[28]Submissions of PPK filed 28 June 2018, [49].

[29]Submissions of Queensland College of Teachers filed 2 May 2018, [20]; see also Submissions of Queensland College of Teachers, 12 July 2018, [13], [26].

[30]Ibid, [21].

[31]Submissions of Queensland College of Teachers, 12 July 2018, [20].

[32]Ibid, [25].

[33](1960) 104 CLR 157 and in particular to [7].

[34]Outline of submissions of respondent dated 20 August 2018, [6]-[16].

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v PPK

  • Shortened Case Name:

    Queensland College of Teachers v PPK

  • MNC:

    [2019] QCAT 59

  • Court:

    QCAT

  • Judge(s):

    Member Grigg, Member Goodman, Member Traves

  • Date:

    11 Mar 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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