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  4. Queensland College of Teachers v Teacher EKR - [2023] QCAT 136

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Queensland College of Teachers v Teacher EKR[2023] QCAT 136

Queensland College of Teachers v Teacher EKR[2023] QCAT 136

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v Teacher EKR [2023] QCAT 136

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

v

TEACHER EKR

(respondent)

APPLICATION NO/S:

OCR324-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 April 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger, Presiding

Member Poteri

Member Robyn Oliver

ORDERS:

  1. A ground for disciplinary action under Section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) (Act) is established.
  2. Teacher EKR is prohibited from reapplying for teacher registration or permission to teach for two (2) years from 20 June 2020 (the date of the denial of his teacher registration) under section 160(2)(j) of the Act.
  3. The Register of Teachers is to be endorsed with a notation under section 161(2)(d) of the Act as follows:

Should the respondent re-apply for registration or permission to teach after the prohibition period, the application must be accompanied by:

  1. (a)
    An independent psychological report satisfactory to the Queensland College of Teachers addressing and demonstrating the respondent has adequate understanding of the following matters:
    1. Awareness of what constitutes appropriate and inappropriate communication and behaviour with children and young people; and
    2. Awareness of the impact that inappropriate communication and behaviour has on children and young people, their families, schools, the community and the profession; and
    3. Awareness of the differentiation between personal and professional relationships with children and young people; and
    4. How to assess risks and identify potentially problematic situations early; and
    5. Awareness of appropriate referral channels and intervention strategies to assist with at risk and/or vulnerable children and young people; and
    6. How to achieve realistic solutions to avoid the risk of harm to children and young people; and
    7. Awareness of the extent and nature of the trust and power invested in teachers by students, colleagues, parents and the wider community; and
    8. Awareness of behaviour that would compromise the professional standing of a teacher and the profession of teaching; and
    9. The need to protect children and students from psychological and emotional harm; and
    10. The concept and importance of professional boundaries; and
    11. The development and maintenance of professional standards and professional boundaries when working with students; and
    12. The legal obligations and the duty of care which arises between teachers and students; and
    13. The importance of full adherence to the Queensland College of Teachers Code of Ethics.
  2. (b)
    Confirmation that Teacher EKR has attended at least 6 sessions over a period of at least 3 months with the psychologist. Such attendance must take place not more than 6 months prior to Teacher EKR making an application for re – registration; and
  3. (c)
    Confirmation that the psychologist was provided with copies of the Tribunal’s orders and reasons for decision and the referral by the Queensland College of Teachers under section 97 of the Act.
  1. Teacher EKR must bear all the costs of, and associated with, compliance with the Tribunal orders.
  2. Publication is prohibited, pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) other than to the parties to this proceeding, of information that may identify the teacher, a relevant student or a former student, or the relevant school, other than to the extent necessary to enable the Queensland College of Teachers to meet its statutory obligations and as provided under the Act.
  3. Teacher EKR may provide a copy of this decision to any regulatory authority or employer in compliance with any disclosure requirements.
  4. Student A is at liberty to seek a variation to this non-publication order.

CATCHWORDS:

EDUCATION – SCHOOLS – TEACHERS’ EMPLOYMENT AND CONDITIONS OF SERVICE – DISCIPLINARY MATTERS – where a mature teacher engaged in communication on social media with a student – where the communication was unwelcome – whether disciplinary grounds exist – standard of behaviour generally expected of a teacher – former approved teacher

Education (Queensland College of Teachers) Act 2005 Qld s 3, s 92(1)(h), s 97 (4), s 158(1), s 158(2), s 161(2)(c), s 161(2)(d)

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

Queensland College of Teachers v CJX [2018] QCAT 117

Queensland College of Teachers v XBW [2019] QCAT 240

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

Queensland College of Teachers v Armstrong [2010] QCAT 709

Queensland College of Teachers v WAS [2015] QCAT 61

Queensland College of Teachers v QKE [2013] QCAT 548

Queensland College of Teachers v SGS [2017] QCAT 383

APPEARANCES &

REPRESENTATION:

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]
    Teacher EKR was originally registered with the Queensland College of Teachers (QCT) on 3 April 2018. He is a former approved teacher in Queensland, who held provisional registration until 3 April 2020. He is a ‘relevant teacher’ for the purposes of the Education (Queensland College of Teachers) Act 2005 (‘the Act’).[1]
  2. [2]
    Teacher EKR was employed full time as a high school teacher of Maths and Physics. He had held this position for almost 18 months when he resigned in September 2019. At the time Teacher EKR was 42 years old with limited documentation as to his past teaching experience in the UK and China. Only two years of teaching experience were documented. His teaching qualification came from the UK in 2015.
  3. [3]
    Teacher EKR taught a female student (Student A) maths and physics in 2019 in addition to 20 extra tutorials after school hours in order to help improve her grades in physics. During this time there were numerous inappropriate and over-familiar comments made by Teacher EKR which made Student A feel uncomfortable enough to request another student to accompany her. These tutorials ceased at the end of Term 3 when the student became increasingly uncomfortable with the situation.
  4. [4]
    By his own admission Teacher EKR struggled to get to the end of the school term and to deal with his students’ assessments so that he could leave the school. At this point Teacher EKR chose to leave the school and leave the country.
  5. [5]
    The written messages to Student A came on various social network platforms and began on the last day of school. The messages were direct, personal and inappropriate, even though not of an explicit sexual nature. Student A showed the messages to her mother who immediately contacted the Queensland Police Service and then the school.
  6. [6]
    In respect of the substantive facts and circumstances of this matter both parties agree that the reported interaction and communication of Teacher EKR with Student A was inappropriate.
  7. [7]
    The QCT made a referral to Queensland Civil and Administrative Tribunal (“the tribunal’) for disciplinary action on 25 November 2021, as to whether a ground for disciplinary action is established against Teacher EKR under sections 97(4) and 158(1) the Act.

Legal Framework

  1. [8]
    Section 92 of the Act sets out the grounds for disciplinary action in practice and conduct matters. Numerous grounds are listed including:

‘the person behaves in such a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.[2]

‘Standard of behaviour’ is not defined in the Act but has been addressed by the Tribunal in a previous matter:

‘…the standard expected should be the standard ‘reasonably’ expected by the community at large, as the actions of a teacher may impact directly on the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers.[3]

  1. [9]
    The issues for determination by the Tribunal in the current matter are:
    1. (a)
      whether a ground for disciplinary action against the respondent has been established;[4] and
    1. (a)
      the ground for disciplinary action to be considered if ‘the teacher 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;[5] and
    2. (b)
      if the Tribunal decides a ground for disciplinary action against the respondent has been established, then the Tribunal must decide the disciplinary action to be taken.[6]
  2. [10]
    The standard of behaviour generally expected of a teacher applies to all students, including former students, with whom power imbalances continue to exist, and to whom continuing professional and ethical obligations apply.
  3. [11]
    In considering the expected standard, the Tribunal must have regard to the main objects of the 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.[7]
  4. [12]
    The purpose of a disciplinary proceeding is to further these objects of the Act.

It is essential that persons registered as teachers do not pose a risk of harm to children. Although punishment is not the aim, deterrence is a relevant consideration. The sanction imposed must provide “general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question”.[8]

  1. [13]
    In determining the appropriate sanction to impose the Tribunal must consider the impact that the behaviour/s may have had on Student A, other students, the school, the profession and the community. The Tribunal may also take into account the teacher’s age, level of experience, level of expertise, the teaching record, the level of cooperation given during the investigative process, and the level of remorse and insight conveyed in the papers provided.
  2. [14]
    In addition, the Tribunal has said:

Ultimately, of course, each case turns on its own facts. There is a range of relevant factors: the age of the teacher, the age of the student, the nature of the conduct, any psychological vulnerability, the level of cooperation in the proceedings, and so on. It is therefore not easy to rank cases in terms of seriousness.[9]

The Allegations

  1. [15]
    The allegations occurred between April 2019 and October 2019.
  2. [16]
    Teacher EKR made comments to the effect that he would smell like Student A if he wore her jacket and that other teachers may think that something was up between them.
  3. [17]
    Teacher EKR told the Student A that he was moving overseas but would stay if the right girl told him she felt the same.
  4. [18]
    Teacher EKR told the Student A that he had been having a bad day but seeing her made his day better.
  5. [19]
    Teacher EKR told the Student A that she should not interact with her boyfriend in a manner that made it apparent that they were in a relationship.
  6. [20]
    Teacher EKR engaged in inappropriate and/or over familiar physical contact with the Student A by grabbing her hand and squeezing it during a demonstration in a physics tutorial.
  7. [21]
    Teacher EKR engaged with the Student A, through numerous inappropriate and /or over familiar media communications without educational context. These included:
    1. (a)
      via Instagram – “I can’t just leave without you knowing that I love you. Hopefully you won’t think it is necessary to tell people and make sure I can’t teach again”; and
    2. (b)
      via Instagram – “Hi ... No doubt my message was a surprise. I would like to talk though, whenever you want, if you ever want. I was telling the truth”; and
    3. (c)
      A request by Teacher EKR to follow the Student A on Instagram; and
    4. (d)
      via Instagram - ... “I know you felt the same. Please can we talk”; and
    5. (e)
      via Instagram - ... “can we talk? If you want to block me just block me and at least I’ll know and I will leave you alone. If you just delete the message you don’t get future messages but I don’t know and you don’t know. Maybe that’s what you want but I don’t know aaaaargh. There’s so much I want to tell you, from so many months, so much I couldn’t say. I’ve never felt like this before. In the end I had to leave. I just couldn’t watch you two together anymore. But I would come back. I’ve already risked it all. I would clearly be willing to lose it all. There are other jobs. ...”; and
    6. (f)
      A request by Teacher EKR to be a friend of the relevant student on Facebook.
  8. [22]
    Teacher EKR disputes some minor aspects of the allegations. However, he accepts the broad scope of the allegations against him. This is demonstrated by the following statement made by Teacher EKR:

“There is little disagreement over the exact allegations, with me having admitted to the broad thrust of them, and virtually all the details.”[10]

  1. [23]
    Taking all the above allegations into account the ground for disciplinary action under section 92(1)(h) of the Act is established.

MITIGATING FACTORS

  1. [24]
    There are a number of mitigating factors in this matter.
  2. [25]
    Teacher EKR acknowledged that misconduct had occurred and that his behaviour did not satisfy the standard of behaviour generally expected of a teacher and that a ground for disciplinary action exists against him.
  3. [26]
    Teacher EKR made some effort, albeit belatedly, to seek psychological help for himself when he was distressed by his inappropriate feelings towards Student A.
  4. [27]
    Teacher EKR restrained himself by not using any overt sexual innuendo during his inappropriate communications with the relevant student either during tutorials or in social media communications.
  5. [28]
    Teacher EKR has shown a deep interest in his areas of expertise and continued learning pursuits. These areas of expertise do not necessarily address the aspects of learning which would address the issues of concern in this matter.

AGGRAVATING FACTORS

  1. [29]
    Teacher EKR would be considered neither youthful nor inexperienced at the time of his misconduct.
  2. [30]
    There was a 25 year age gap between Teacher EKR and the Student A. His comment that ‘I didn’t have the aversion to age gaps as some do. But I do know that students and teachers have an unequal power dynamic and due to that, in addition to her age, I should not have allowed feelings to develop, and shouldn’t have acted on them’.[11] This comment reinforces the lack of both insight and knowledge of Child Protection Principles that are part of Mandatory All Staff Training for all teachers every year.
  3. [31]
    There are a significant number of instances of inappropriate conduct over a period of approximately 6 months.
  4. [32]
    Teacher EKR’s details of past experience and employment is not informative and there are many periods of time in his work history where no information or details are outlined. The only real detail that is provided by Teacher EKR is the certified verification of 2 years teaching since Teacher EKR graduated in 2015.
  5. [33]
    Teacher EKR was aware that he had psychological issues and delayed taking any steps to address the issues.
  6. [34]
    Teacher EKR chose to surrender his registration on 11 February 2020 by not paying the annual fee, because he was no longer teaching in Queensland. This was actioned by the QCT on 3 April 2020. Teacher EKR’s reapplication for Teacher registration on or about 5 May 2020 was denied by the QCT on 16 June 2020. It is noted that around September 2022 Teacher EKR stated the following:

‘I left the job voluntarily, but partly as a result of the issues that were occurring.’...

‘I have lived with the fear of the events coming out ever since they occurred’.[12]

  1. [35]
    The psychologist’s report dated 13 September 2020 comprised six lines relating to his therapy with Teacher EKR. The report did not set out specific modules of work topics covered during therapy and does not give the required depth of review of Teacher EKR’s sessions, to reassure the Tribunal that he has the requisite knowledge and skills of what constitutes appropriate teacher behaviour. This view is reinforced by the following comment in the submissions by Teacher EKR dated 22 August 2022:

‘I do not deny that at the time of sending the messages I felt that I would return from abroad some months later if ‘the relevant student’ had wanted to see me, as I said previously some part of me felt she should at least be 18 if we were to meet.’ [13]

  1. [36]
    When a ground for disciplinary has been established, the Tribunal must have regard to any relevant previous decision by a practice and conduct body of which it is aware.[14]

Previous Decisions

  1. [37]
    The behaviours described within the following selected relevant previous decisions vary greatly. However, all decisions include teachers and students of ages with significant similarities to the current matter involving Teacher EKR, including similarities with education and life experiences commensurate with age:
    1. (a)
      Queensland College of Teachers v XBW [2019] QCAT 240

XBW was 49 years of age. XBW was Head of Department and the student’s English teacher. XBW’s behaviour was of a serious and sexualised manner. This differs from the behaviour in the current matter of Teacher EKR. However, the similarities lie in the ages of the two people involved in each case, the inappropriate communications, comments, and physical contact made, albeit of differing levels of seriousness. In both cases the communications were not of an educational manner and were made both during the school term and shortly after graduation. The evidence in XBW indicated that the behaviour was calculated and premeditated with expressions of interest of a romantic and sexual relationship waiting until after graduation and then escalating indicating that there was some understanding of the inappropriateness of the behaviour.[15] Similarly, Teacher EKR and XBW placed their own desires above their paramount duty to uphold standards and maintain public confidence in the teaching profession. XBW continued his misconduct over an extended period of time. In contrast Teacher EKR had minimal instances of misconduct and held some personal remorse for their occurrence. XBW had his teacher registration cancelled for three and a half years from the date of the decision, together with a notation requiring a psychologist’s report on re-application.

  1. (b)
    Queensland College of Teachers v QKE [2013] QCAT 548

QKE was 40 years old and an experienced teacher. He inappropriately communicated with and touched a female student who was the daughter of a family friend. The student was 16 years old. The similarity with Teacher EKR’s case is that the communication in all instances was unwelcome. QKE persisted with his sexualised comments and behaviours over 5 months. Both QKE and Teacher EKR agreed that their conduct did not satisfy the standard of behaviour generally expected of a teacher. The Tribunal accepted that QKE was experiencing mental health issues at the time of his misconduct. He admitted to the conduct and was cooperative with the investigative process. QKE’s teacher registration was cancelled for two years from the date of the decision with a notation requiring a psychologist’s report on re-application.

  1. (c)
    Queensland College of Teachers v SGS [2017] QCAT 383

SGS involved a sexual relationship between a 42 year old Teacher and a 17 year old student who was known to SGS but not taught by him. The relationship began soon after SGS transferred away from the student’s school and continued after her graduation. Thousands of text messages were exchanged in addition to phone messages and Facebook images sent. SGS accepted his wrongdoing. He was no longer registered at the time of the Tribunal’s decision. SGS was prohibited from registering as a teacher for seven years. The similarities of ages of the Teacher and student are significant. The behaviour of SGS was far more serious, more deeply entrenched, and over a much longer period of time than the current matter. That said, the basic wrongdoing and the acceptance of this wrongdoing by SGS is strikingly similar to that of Teacher EKR.

  1. [38]
    The QCT and Teacher EKR agree that a disciplinary action is appropriate and the Tribunal has found that a ground for disciplinary action exists. The Tribunal agrees with the submissions of QCT that the appropriate sanction is a period of time during which Teacher EKR is prohibited from re – applying for teacher registration, subject to certain conditions. Having regard to precedents set out in this decision the Tribunal finds that the appropriate prohibition period is 2 years from 20 June 2020.

PYSCHOLOGIST REPORT

  1. [39]
    The Tribunal remains concerned that Teacher EKR has displayed little remorse and insight regarding his misconduct. This decision will therefore include a notation requiring Teacher EKR to undergo psychological assessment and associated sessions for the purposes of understanding the necessity to protect children, students and young adults of all ages. The Tribunal relies on the QCT to oversee this assessment to its own high standards.
  2. [40]
    The Tribunal orders include a requirement for the provision of an up to date psychologist’s report to form part of any future application for re-registration by Teacher EKR.

NON-PUBLICATION ORDER

  1. [41]
    The Tribunal and the QCT agree that the order made by Senior Member Aughterson on 6 December 2021 should continue under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), with further exceptions to allow for information sharing required in the protection of children, students and young adults, and for Teacher EKR to be able to meet his disclosure obligations.
  2. [42]
    Because the non-publication order is sought for the benefit of Student A, she may wish to speak out about her experiences, and she should not be precluded from seeking a variation to the non-publication order in that event.

Footnotes

[1] Schedule 3 of the Act.

[2] Section 92 (1)(h) of the Act.

[3] Queensland College of Teachers v Armstrong [2010] QCAT 709, 33.

[4] Section 158(1) of the Act.

[5] Section 92 (1)(h) of the Act.

[6] Section 161 of the Act.

[7] Section 3 of the Act.

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

[9] Queensland College of Teachers v WAS [2015] QCAT 61.

[10] Respondent Document 6 pages headed ‘QCAT Statement’, p 6.

[11] QCT Document p 54.

[12] Respondent Document ‘QCAT Statement – Addition’ p 2.

[13] Respondent response to QCT submission dated 22.08.2022. [d].

[14] Section 158(2) of the Act.

[15] Queensland College of Teachers v XBW [2019] QCAT 240. 12(d).

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher EKR

  • Shortened Case Name:

    Queensland College of Teachers v Teacher EKR

  • MNC:

    [2023] QCAT 136

  • Court:

    QCAT

  • Judge(s):

    Member Holzberger, Presiding, Member Poteri, Member Robyn Oliver

  • Date:

    18 Apr 2023

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
2 citations
Jump To
Cite 1 - [2010] QCAT 709
Cite 2 - [2010] QCAT 709
Queensland College of Teachers v SGS [2017] QCAT 383
2 citations
Jump To
Cite 1 - [2017] QCAT 383
Cite 2 - [2017] QCAT 383
Queensland College of Teachers v Teacher CXJ [2018] QCAT 117
1 citation
Jump To
Cite 1 - [2018] QCAT 117
Queensland College of Teachers v Teacher QKE [2013] QCAT 548
2 citations
Jump To
Cite 1 - [2013] QCAT 548
Cite 2 - [2013] QCAT 548
Queensland College of Teachers v Teacher XBW [2019] QCAT 240
3 citations
Jump To
Cite 1 - [2019] QCAT 240
Cite 2 - [2019] QCAT 240
Cite 3 - [2019] QCAT 240
Queensland College of Teachers v TSV [2015] QCAT 186
2 citations
Jump To
Cite 1 - [2015] QCAT 186
Cite 2 - [2015] QCAT 186
Queensland College of Teachers v WAS [2015] QCAT 61
2 citations
Jump To
Cite 1 - [2015] QCAT 61
Cite 2 - [2015] QCAT 61

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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