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Teacher's registration cancelled after being found 'guilty of serious incompetence and unfit to teach'

29/04/15
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A panel convened by the Victorian Institute of Teaching (the VIT) has found a teacher 'guilty of serious incompetence and unfit to teach' after hearing charges of 18 different instances of misconduct and incompetence.

The background

We lay out the scene in Victoria, at a Government-run secondary college (the College). Our player is Harry (a pseudonym), who was a chef turned food technology teacher. Harry was first registered as a teacher in 2007. According to the Principal of the College, Harry worked on a contract basis at five different government and Catholic schools from 2009 to 2013.

It was not long after Harry began to teach at the College that problems arose. Evidence was given by the Principal that in his short time at the College, Harry was the subject of 49 formal complaints. Concerns had been raised from students, parents and staff.

Despite efforts to provide him with mentoring and guidance, Harry did not make it past probation. He was then banned from teaching in any Victorian government school.

The proceedings before the Panel

In accordance with procedure, in September 2013 the College notified the VIT that it had taken action in relation to the alleged incompetence of Harry. The VIT Professional Conduct Committee then conducted an investigation and decided to refer the matter for a formal hearing. This was to be held before a panel appointed by the VIT (the Panel). Although notice was sent to Harry about the formal hearing, he did not attend and instead provided written evidence. The matter was heard in his absence on 17 November 2014.

The full list of allegations and findings against him is extensive. It can be read in the written decision of the Panel.

Although the hearing procedure is similar to that of a court, the formal rules of evidence do not apply, but the laws of natural justice (procedural fairness) do apply.

Evidence was given that the following events were allegedly observed in Harry's classes:

  • a game where boys used a fork to hit between their fingers as quickly as possible;
  • a cooler with six unopened stubbies of beer, found in the students' fridge (12 were found on a different date, but placed under the demonstration bench); and
  • a student who used the apron she was wearing to remove a glass bowl from boiling water (she apparently said 'Sir told me').

In another incident, a staged photo of a student 'threatening' another with a kitchen knife was allegedly uploaded onto the internal staff portal. In a further alleged incident of failed supervision, a student's workbook was set on fire by another student.

In Harry's response to these allegations, he said that he was 'actively undermined by the administration, coordinators, particular teachers who were appointed to support him, and kitchen assistants'. For many of the allegations, he provided an explanation.

In the Panel's assessment of the evidence, it said that 'far from being members of some sort of feminist cabal engaged in a political conspiracy to discredit the teacher, as he claimed, [the other witnesses] impressed the Panel as dedicated professionals motivated by both a concern for the students in the teacher’s care and for improving his capability as a teacher'.

In considering Harry's evidence, the Panel said that 'the Panel was struck by what the Principal described as a mindset characterised by ‘deny, deflect, dismiss or devalue’.

In relation to evidence that Harry had 'personally abused' teachers who took issue with the hygiene and cleanliness of his classroom, the Panel said that 'as the Panel read the accumulated evidence in the documentation accompanying witness statements, it became evident to it that the allegations were a sample of the teacher’s unprofessional behaviour, not the full gamut of the 49 complaints made against him'.

The result

The allegations and claims, which have not been proven in a court of law, were sufficient for the Panel to cancel Harry's registration as a teacher. It said that 'in taking such an extreme step the Panel was aware of the implications for the teacher’s future livelihood. Nevertheless, the Panel believes it has a responsibility to balance that consideration against its responsibilities to future students and school communities, the reputation of the profession and the public interest.'

It further went on to say that it chose to cancel the registration instead of the other options open to it, such as imposing a suspension with conditions, because Harry had been given the sort of support and mentoring that conditions normally involve, without improvement. Instead, those measures had resulted in:

  • 'fractious relationships with colleagues and students;
  • complaints from parents;
  • student disengagement and anxiety because of his teaching style;
  • poor student management;
  • a disregard for the safety and health requirements for teaching food technology (often resulting in dangerous practices in the classroom); and
  • excessive demands made on the support of his colleagues, many of whom he treated with contempt and suspicion.'

Non-government schools, can view this case as a reminder that when making a decision to dismiss a teacher, they must ensure that the reasons for the decision are objectively justifiable in the circumstances, but in addition, that the necessary process is followed. Under the Fair Work Act a school employer has a duty to:

  • make the allegations known to the teacher;
  • provide an adequate opportunity to the teacher to present his or her case (the fair hearing rule)
  • hear all the relevant evidence and conduct a reasonable investigation ;
  • consider the evidence objectively and without bias;
  • provide the opportunity for a support person to be present (this is a recent development from the courts); and
  • make a decision which is reasonable based on the available information.

It should also be noted that the reason to dismiss an employee must not take into account matters which constitute unlawful discrimination, for example a person's gender or age.

While the standard of what constitutes behaviour or performance that is sufficient to warrant termination may differ between the Fair Work Commission (administering the unfair dismissals jurisdiction) and professional accreditation/registration bodies, in all employment relationships (not just with teachers) the Fair Work Act requires procedural fairness in dealing with allegations about an employee's performance where they lead to dismissal, or 'adverse action'.

Some of the other charges relating to the alleged conduct of the teacher are listed below.

  1. Failing in duty of care towards students under direct supervision and authority:
    • students were allowed to swing a broom around the classroom;
    • student was not supervised, resulting in him setting another student’s workbook on fire in the classroom.
  2. Failing to be respectful and courteous when communicating with parents, students and colleagues:
    • a comment made to student 5, to the effect that he ‘would need to break it down for an amateur like you’ and ‘drink a cup of concrete and harden up’ and ‘other students need my help, especially student 6 because she’s my favourite student’;
    • called student 8 a ‘liar’ in class.
  3. Failing to undertake your duties as a teacher in a professional and responsible way:
    • allowed students in Year 12 Food Technology class to watch videos of ‘Border Security’;
    • indicated to female students in your classes that they were required to clean up after the male students and do their dishes;
    • ate school store supplies;
    • left the School to run errands during a time block scheduled for Parent Teacher Interviews;
    • marked a student, student 9, as present in class when he was not;  and
    • allowed students to turn on hotplates and ovens to heat the classroom. 
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