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Queensland College of Teachers v Teacher QNL[2021] QCAT 100

Queensland College of Teachers v Teacher QNL[2021] QCAT 100

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v Teacher QNL [2021] QCAT 100

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

v

TEACHER QNL

(respondent)

APPLICATION NO/S:

OCR306-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

Date of orders 28 January 2021

Reasons delivered 16 March 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves, Presiding

Member English

Member McDonnell

ORDERS:

  1. The disciplinary ground in s 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) is established.
  2. The suspension of Teacher QNL is ended. 
  3. Teacher QNL is reprimanded. 
  4. Subject to the exceptions in order five (5) below, other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information that may identify Teacher QNL, a relevant complainant, or the relevant school.
  5. The Queensland College of Teachers may provide a copy of the decision and the reasons for the decision to:
  1. (a)
    Any relevant body conducting an investigation or disciplinary proceeding relating to the matters giving rise to the proceedings;
  1. (b)
    The chief executive of the Department of Education; 
  1. (c)
    Other teaching regulatory authorities;
  1. (d)
    Any employing authority for a school;
  1. (e)
    Any principal of a school who was provided with a copy of the notice of suspension under s 50(4) of the Education (Queensland College of Teachers) Act 2005 (Qld);
  1. (f)
    The Minister of Education; 
  1. (g)
    A relevant agency with whom the QCT has entered into an information sharing agreement under s 287 of the Education (Queensland College of Teachers) Act 2005 (Qld);
  1. (h)
    The Chief Executive of Employment Screening; and
  1. (i)
    Any other entity relevant to the teacher’s practice of the teaching profession.

CATCHWORDS:

EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – GOVERNMENT INSTITUTIONS – where teacher charged with ‘serious offence’ for the purposes of the Education (Queensland College of Teachers) Act 2005 (Qld) – where teacher’s registration was suspended – where charges were dismissed – where alleged conduct did not occur in the course of teaching – whether ground for disciplinary action exists – where appropriate sanction discussed 

Education (Queensland College of Teachers) Act 2005

(Qld), s 3, s 92(1)(h), s 97, s 158, s 160, Schedule 3

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

Queensland College of Teachers v CMF [2016] QCAT 137

Queensland College of Teachers v DMG [2018] QCAT 194

Queensland College of Teachers v PPK [2019] QCAT 59

Queensland College of Teachers v QNL [2020] QCAT 116

Queensland College of Teachers v TSV [2015] QCAT 186

APPEARANCES &

REPRESENTATION:

Applicant:

K Deo, Acting Principal Legal Officer of the Queensland College of Teachers

Respondent:

Holding Redlich

 

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

Background

  1. [1]
    Teacher QNL was initially registered with the Queensland College of Teachers on 12 May 2011 and currently holds a full registration (suspended at the time of the Order). She is 34 years old. 
  2. [2]
    On 24 February 2020, the Queensland Police Service notified the College that Teacher QNL had been charged with sexual assault pursuant to s 352(1)(a) of Schedule 1 of the Criminal Code Act 1899 (Qld). As this is a ‘serious offence’[1] the College was required by s 48 of the Education (Queensland College of Teachers) Act 2005 (Qld) (Education Act) to suspend QNL’s teacher registration. The College did so and then referred the continuation of the suspension to the Queensland Civil and Administrative Tribunal. 
  3. [3]
    On 21 April 2020, following receipt of submissions, the Tribunal ordered that the suspension be continued.[2]
  4. [4]
    On 18 August 2020 the College obtained an updated national police check which indicated that no evidence was offered with respect to the serious offence charge of sexual assault.[3] The serious offence charge was dismissed following the matter proceeding by way of Adult Restorative Justice Conferencing.[4] 
  5. [5]
    These proceedings arise from a mandatory referral by the College to the Tribunal under s 97 of the Education Act on 6 October 2020. The College filed an amended referral on 21 January 2021.[5] The conduct which the College alleges occurred and which established a ground for disciplinary action under s 92(1)(h) of the Education Act is set out in Annexure A to the amended referral.
  6. [6]
    Under s 97 of the Education Act, 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. 
  7. [7]
    Section 92(2)(a) of the Education Act provides that the ground for disciplinary action set out in s 92(1)(h) is taken to apply to a relevant teacher whose registration has been suspended under s 48 and where the teacher has been charged with a ‘serious offence’ and that charge has been ‘dealt with’. For the purposes of the provision ‘dealt with’ includes where a charge against a relevant teacher for a serious offence has been withdrawn or dismissed.[6]
  8. [8]
    The object of s 92(2) is to ensure the circumstances of the charge are examined by a practice and conduct body.[7]
  9. [9]
    In relation to this matter, the relevant body is the Tribunal.[8] 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.[9] 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.[10] The Tribunal is to make its decision based on the information provided to it by the College.[11]
  10. [10]
    ‘Relevant teacher’ is defined to mean either an approved teacher, or a former approved teacher.[12] Teacher QNL is a ‘relevant teacher’.[13] 
  11. [11]
    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.
  12. [12]
    The Tribunal made its decision on 28 January 2021:
    1. (a)
      that a disciplinary ground is established;
    2. (b)
      ending the suspension;
    3. (c)
      reprimanding Teacher QNL; and 
    4. (d)
      making non-publication orders.
  1. [13]
    These are the Tribunal’s written reasons for its decision. 

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

  1. [14]
    The ground for disciplinary action in s 92(1)(h) of the Education Act is 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

  1. [15]
    In submissions, Teacher QNL accepted that the fact of the charge against her and that it had been withdrawn is a ground for disciplinary action. Further, she did not contest that her behaviour, as set out in the amended referral and detailed in the material produced by the QPS, would be viewed as inappropriate by both the community and the profession as behaviour that failed to adhere to the standards of behaviour expected of a teacher and thus that the conduct establishes a ground for disciplinary action under s 92(1)(h) of the Education Act.
  2. [16]
    Although the parties have now agreed the ground is established the Tribunal must be satisfied on its own assessment of the relevant facts and circumstances that a disciplinary ground exists.[14] By virtue of s 92(2)(a) and (3) of the Education Act, the Tribunal must examine the circumstances of the charge.[15]
  3. [17]
    For the reasons set out below, the Tribunal finds the ground in s 92(1)(h) of the Education Act is established. 
  1. [18]
    ‘Standard of behaviour’ is not defined in the Education Act but has been addressed by the Tribunal in previous matters: 

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

  1. [19]
    The Tribunal agrees with the observations made in Queensland College of Teachers v PPK:

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 to have occurred in his capacity as a teacher.[17]

  1. [20]
    In considering the expected standard, the Tribunal must have regard to the main objects of the Education Act which are:
    1. (a)
      to uphold the standards of the teaching profession; and
    2. (b)
      to maintain public confidence in the teaching profession; and 
    3. (c)
      to protect the public by ensuring education in schools is provided in a professional and competent manner by approved teachers.[18]
  2. [21]
    The following is taken from the Court Brief:[19]
    1. (a)
      A group of five work colleagues celebrated the end of school term in June 2019 with dinner, followed by drinks at a colleague’s house and then attendance at a nightclub;
    2. (b)
      Each of the colleagues was intoxicated by the time they attended the nightclub;
    3. (c)
      At the nightclub Teacher QNL was extremely intoxicated;
    4. (d)
      During the night Teacher QNL attempted to touch the complainant’s front upper thighs and back and hold her hand;
    5. (e)
      This made the complainant uncomfortable and caused her to attempt to distance herself from Teacher QNL;
    6. (f)
      During the night Teacher QNL came up behind the complainant and slid her hand down the complainant’s pants between her pants and her underpants and grabbed her vagina;[20] 
    7. (g)
      The complainant spun around and confronted Teacher QNL and Teacher QNL shrugged;
    8. (h)
      Shortly afterwards the group left the nightclub, with Teacher QNL and the complainant going in different directions;
    9. (i)
      The complainant reported the matter to her employer who determined that the matter was not work related so directed the complainant to the police;
    10. (j)
      On 4 December 2019 the complainant made a complaint to the police;
    11. (k)
      On 23 February 2020 Teacher QNL attended the police station and stated to police that she was heavily intoxicated on the night and had no memory of being at the nightclub. 
  3. [22]
    The statements provided to the police by members of the group confirm that the group celebrated the end of term with dinner at a restaurant and drinks at a colleague’s house and then later they attended the nightclub. They had all been drinking but Teacher QNL was the most intoxicated, with one of their number considering that Teacher QNL was intoxicated to the extent that she may not have been admitted to a nightclub.[21] At the nightclub they continued to drink, danced and played pool. Teacher QNL danced with the complainant and was observed to be clingy with her, hanging off her back and holding her around the waist. No one in the group witnessed the incident. 
  4. [23]
    The complainant described the relevant incident as follows in her statement:
    1. I was watching the pool table and felt someone was close behind me, I felt them slide their hand down the left side of my body. 
    2. I felt someone slide their hand in between my pants and my underpants and grab my vagina. 
    3. They didn’t grab it for long maybe 2-3 seconds and pulled their hand out of my pants. 
    4. I turned around and saw [Teacher QNL], she was close and the only one there. 
    5. I said words to the effect of ‘What are you doing?’ ‘What do you think your husband would think of this?’ 
    6. [Teacher QNL] just shrugged and I walked away and went to the bathroom. …. 

26. At no time did I give [Teacher QNL] permission to touch or grab me at any stage throughout the evening.[22] (de-identified)

  1. [24]
    A member of the group shared a ride home with the complainant and recalled the following conversation with the complainant on that trip:
    1. She said “[Teacher QNL] put her hand down my pants, and that’s not Ok”
    2. I said “really? that’s not Ok”

20. She said “what’s the go with her husband?” and “I don’t want anything to do with [Teacher QNL]”.[23] (de-identified)

  1. [25]
    He said that the same day the complainant sent a text message to him which said:

I would be pretty happy never to see [Teacher QNL] again to be honest. She legit put her hands down my pants at one stage and I had to actually run away from her…[24] (de-identified)

  1. [26]
    Another member of the group shared a ride home with Teacher QNL. She recalled Teacher QNL saying to her ‘I love [the complainant] I’d turn gay for her’ and that Teacher QNL tried unsuccessfully to call the complainant during the hour-long trip home. Teacher QNL fell asleep a few times on the way home and at Teacher QNL’s address she had to help Teacher QNL to her house because she was too intoxicated to walk by herself. She recalled talking with Teacher QNL after the school holidays:
    1. [Teacher QNL] then said something to me like “I don’t remember anything from that night” and “I had such a sore head the next day”.
    2. [Teacher QNL] then asked me how she got home, and I said “I took you home!”. She clearly hadn’t remembered anything. 
  2. [27]
    Text messages between some members of the group the next day indicate that they were concerned by Teacher QNL’s inappropriate behaviour the evening before and observed that it had made the complainant uncomfortable.[25]
  3. [28]
    There was no statement from Teacher QNL. However, in submissions made on her behalf[26] it was said that:
    1. (a)
      in relation to the night in question Teacher QNL drank too much and admitted her memory of what is alleged to have occurred is incomplete;
    2. (b)
      she does not allege the complainant has been dishonest, only that Teacher QNL cannot confirm the version of events that has been put to her;
    3. (c)
      she has reduced her alcohol consumption following the incident and did not consume alcohol at all during her subsequent pregnancy;
    4. (d)
      she was unaware of any grievance, or even that the incident occurred in the way claimed before she was contacted by police in January 2020;
    5. (e)
      she is deeply embarrassed by what has occurred and deeply regrets any hurt, embarrassment, or trauma she has caused, and this has been communicated to the complainant, who has accepted her apology;
    6. (f)
      she does not minimise the seriousness of her conduct, but does submit that it was an aberration caused by her attempt to ‘keep up’ with her friend’s consumption of alcohol;
    7. (g)
      on 24 July 2020 Teacher QNL and the complainant agreed after mediation that they wished the charges to be discontinued;
    8. (h)
      on 31 August 2020 the prosecution formally offered no evidence in relation to the charge and the matter was dismissed.
  4. [29]
    Teacher QNL indicated that she did not contest the College’s 18 January 2021 submissions, except in relation to a point about whether a previous non-publication order had been made in the proceedings.[27] 
  1. [30]
    We find on balance that the sexual assault occurred. In this regard we accept the complainant’s evidence when she says that the incident as set out in paragraph 21(f) above, took place. The account is corroborated by her complaint to members of the group that night and the next day. Teacher QNL’s colleagues at the nightclub, although not observing the incident complained of, did give evidence that Teacher QNL was making the complainant feel uncomfortable and that her conduct generally was inappropriate which also provides some corroborative context to the complainant’s evidence. We also accept that Teacher QNL was very intoxicated and unable to recall the incident. We also take into account her apology and clear remorse for her conduct that night as far as she can recall it. We also note that the charges arising from Teacher QNL’s conduct were the subject of restorative justice mediation and that, while the charges were dismissed, this was not due to a lack of evidence. 
  1. [31]
    The Tribunal finds that Teacher QNL’s conduct on the night in question which led to her being charged with sexual assault would be viewed as inappropriate by the community and by the profession as behaviour that fell below the standard of behaviour generally expected of a teacher. Teachers are in a position of trust and responsibility and for this reason parents, and the community more broadly, expect teachers to conduct themselves appropriately both professionally and personally. 
  1. [32]
    We find that Teacher QNL 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) of the Education Act has been established. 

What is the appropriate sanction?

  1. [33]
    Section 160 of the Education Act applies to an approved teacher. It sets out the actions which may be taken by the Tribunal where it has determined that a ground for disciplinary action has been established. 
  1. [34]
    The purpose of disciplinary action is not to punish the teacher but to further the objects of the Education Act. Deterrence is a relevant consideration, comprising both a general deterrence to the profession and a specific deterrence to Teacher QNL.[28] 
  1. [35]
    Other factors relevant to the Tribunal’s consideration of the appropriate sanction include the nature and context of the behaviour; the impact the behaviour may have had on students, the school and the community; what actions Teacher QNL has taken to remedy the situation; her level of experience and teaching record; the level of insight Teacher QNL has regarding the conduct; the level of remorse expressed by Teacher QNL and her participation in the investigation and disciplinary process.[29] 
  1. [36]
    In determining sanction the Tribunal considered the following aggravating and mitigating factors:
  1. (a)
    Teacher QNL has been a registered teacher since 12 March 2011 and was 33 years of age at the time of the incident the subject of the charge;
  2. (b)
    Teacher QNL has no known prior disciplinary history;
  3. (c)
    Her teacher registration has been suspended since 24 February 2020;
  4. (d)
    Her behaviour was not connected with her duties as a teacher, did not involve a student and was not directly connected with the teaching profession;
  5. (e)
    That Teacher QNL:
    1. said she had too much to drink and admits her memory of what is alleged to have occurred is incomplete;
    2. does not allege that the complainant is dishonest, only that she cannot confirm the version of events put to her;
    3. is deeply embarrassed by what has occurred and deeply regrets any hurt, embarrassment or trauma she has caused, and this has been communicated to the complainant who has accepted her apology;
    4. does not minimise the seriousness of her conduct but submits that it was an aberration caused by her attempt to ‘keep up’ with her friend’s consumption of alcohol;
    5. since the incident and certainly since being contacted by police in January 2020 rarely drinks alcohol, even moderately; and 
    6. through her participation in Adult Restorative Justice Conferencing, including her apology to the complainant, and in written submissions made on her behalf, expressed insight and remorse.
  1. [37]
    The parties were not able to refer the Tribunal to decisions involving sanctions imposed by the Tribunal in directly comparable factual circumstances. In the absence of comparable cases the Tribunal took into consideration the matters above in determining the appropriate sanction.
  2. [38]
    Teacher QNL’s registration has been suspended since 24 February 2020. The Tribunal has found that a disciplinary ground has been established. In all the circumstances, the Tribunal is of the view that the suspension should be ended, and that Teacher QNL’s conduct warrants a reprimand which would serve as a general deterrent to other teachers as well as a personal one to Teacher QNL. 

Non-publication

  1. [39]
    The Tribunal considers that in the interests of justice and in view of the nature of the allegations and the conduct of concern, a non-publication order should be made under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), to ensure that the complainant is not identified. The Tribunal prohibits the publication of any information that could identify Teacher QNL, the complainant in the criminal matter or the school.
  2. [40]
    The College submitted that if a non-publication order was made, an exception be applied which enables the sharing of information for certain purposes. We agree and have expressed the non-publication order accordingly. 

Footnotes

[1]    The definition of ‘serious offence’ was contained in s 167 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) at the time the notification was received. See also the Education (Queensland College of Teachers) Act 2005 (Qld), Schedule 3 (Education Act).

[2] Queensland College of Teachers v QNL [2020] QCAT 116.

[3]    Affidavit of HJE sworn 28 September 2020, Exhibit E.

[4]    Affidavit of HJE sworn 28 September 2020, Exhibit G.

[5]    Affidavit of DKK sworn 18 January 2021, Exhibit B.

[6] Education Act, s 92(5).

[7] Education Act, s 92(3).

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

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

[10] Education Act, s 97(4)(b), s 158.

[11] Education Act, s 97(4).

[12] Education Act, Schedule 3.

[13]   Affidavit of HJE sworn 28 September 2020, Exhibit A.

[14] Queensland College of Teachers v DGM [2018] QCAT 194, [12].

[15]   See also Queensland College of Teachers v CMF [2016] QCAT 137.

[16] Queensland College of Teachers v PPK [2019] QCAT 59, [13], and see [36].

[17]   Ibid, [35].

[18] Education Act, s 3.

[19]   Affidavit of DKK sworn 18 January 2021, Exhibit A, page 13.

[20]   While the police brief says that Teacher QNL slipped her hand under the complainant’s pants, the statement of the complainant (contained in exhibit A, page 22 of the Affidavit of DKK sworn 18 January 2021) says ‘between my pants and my underpants’.

[21]   Affidavit of DKK sworn 18 January 2021, Exhibit A, page 25, statement of witness.

[22]   Affidavit of DKK sworn 18 January 2021, Exhibit A, page 22, statement of witness.

[23]   Affidavit of DKK sworn 18 January 2021, Exhibit A, page 26, statement of witness.

[24]   Affidavit of DKK sworn 18 January 2021, Exhibit A, page 32.

[25]   Affidavit of DKK sworn 18 January 2021, Exhibit A, pages 33 and 34.

[26]   Respondent’s Submissions dated 7 December 2020.

[27]   Respondent’s Submissions dated 19 January 2021.

[28] Queensland College of Teachers v TSV [2015] QCAT 186, [25].

[29] Queensland College of Teachers v Teacher BAM [2012] QCAT 694, [41].

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher QNL

  • Shortened Case Name:

    Queensland College of Teachers v Teacher QNL

  • MNC:

    [2021] QCAT 100

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    16 Mar 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Queensland College of Teachers v Armstrong [2010] QCAT 709
1 citation
Jump To
Cite 1 - [2010] QCAT 709
Queensland College of Teachers v CMF [2016] QCAT 137
2 citations
Jump To
Cite 1 - [2016] QCAT 137
Cite 2 - [2016] QCAT 137
Queensland College of Teachers v CMF (No. 2) [2016] QCAT 290
1 citation
Jump To
Cite 1 - [2016] QCAT 290
Queensland College of Teachers v DGM [2018] QCAT 194
2 citations
Jump To
Cite 1 - [2018] QCAT 194
Cite 2 - [2018] QCAT 194
Queensland College of Teachers v PPK [2019] QCAT 59
3 citations
Jump To
Cite 1 - [2019] QCAT 59
Cite 2 - [2019] QCAT 59
Cite 3 - [2019] QCAT 59
Queensland College of Teachers v QNL [2020] QCAT 116
2 citations
Jump To
Cite 1 - [2020] QCAT 116
Cite 2 - [2020] QCAT 116
Queensland College of Teachers v Teacher BAM [2012] QCAT 694
1 citation
Jump To
Cite 1 - [2012] QCAT 694
Queensland College of Teachers v TSV [2015] QCAT 186
2 citations
Jump To
Cite 1 - [2015] QCAT 186
Cite 2 - [2015] QCAT 186

Cases Citing

Case NameFull CitationFrequency
Queensland College of Teachers v ATB [2025] QCAT 1812 citations
Queensland College of Teachers v Teacher EOL [2022] QCAT 1083 citations
Smith v Nelson [2023] QCATA 512 citations
Wallader v Waterson [2022] QCAT 1762 citations
1

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