A male high school teacher (BVN) applied to the NSW Civil and Administrative Tribunal (NCAT) for a review of the decision by the Children’s Guardian to refuse him a working with children check clearance (WWCC clearance). The NCAT found that due to his professional misconduct and possible grooming behaviour he posed a threat to children and upheld the Children’s Guardian’s decision.

Background

BVN was the subject of an internal school investigation which found that 19 of the 20 allegations of professional misconduct made against him by female students were substantiated. Following the school’s investigation, the substantiated allegations were reported to the NSW Ombudsman and BVN’s employment at the school was terminated in 2005.

BVN recently applied for a WWCC clearance, triggering a risk assessment following the Ombudsman report which then resulted in a decision by the Guardian to refuse BVN a WWCC clearance. BVN appealed the Guardian’s decision to the NCAT.

The law

NSW schools are required by the Ombudsman Act 1974 (NSW) to investigate and report to the Ombudsman any allegations of employee misconduct relating to any sexual offence or misconduct committed against, with, or in the presence of, a child. When a person applies for a WWCC clearance, the Children’s Guardian checks with the Ombudsman for any notifications of matters indicating the existence of a serious risk to children. If such notifications are found, the Children’s Guardian is required by the Child Protection (Working with Children) Act 2012 (NSW) to conduct a risk assessment to determine whether the person poses a risk of harm to children.

The allegations

The numerous allegations of misconduct centred on BVN’s unprofessional conduct toward two 16-year-old female students. The allegations included that BVN:

• met with the students alone during breaks;
• made inappropriate sexual comments the students;
• gave the students gifts; and
• shared inappropriate personal and sexual details with the students.

The school’s internal investigation

As disclosed by both BVN and the school, these allegations were not the first time that BVN’s professional behaviour had been questioned. BVN had previously been warned by the school about a questionable relationship between himself and a student, and was instructed to ‘maintain professional relationships with his students’. The school had policies and specific staff in place to enable students to discuss and address personal matters of concern to prevent unprofessional relationships developing between students and teachers.

Following the allegations, an internal investigation into the matter revealed that BVN had ‘engaged in inappropriate behaviour in his dealings with the two female students including the discussion of sexual matters personal to him and remarks of a sexual nature’.

These discussions demonstrated that BVN had crossed the professional boundaries that, as a teacher, he was expected to ensure were kept between students and himself. The school’s report concluded that BVN was unable to maintain professional boundaries with senior female students and that BVN had now demonstrated this by a pattern of behaviour.

In accordance with its obligations under the Ombudsman Act, the school notified the Ombudsman of the allegations made against BVN and the findings of the internal investigation.

After giving BVN an opportunity to be heard with respect to the allegations and the investigation’s findings, the school terminated his employment.

‘Fulfilment of duty of care’

The nature of BVN’s conduct proved a contentious matter before the NCAT with BVN claiming that his highly personal interactions with the female students was done in fulfilment of his duty of care.

The NCAT accepted that in the context of all cases of child abuse, the conduct of BVN was by no means the most serious form of misconduct or abuse. However it was conduct that was still plainly unacceptable and which could lead to significant harm to the children involved. This concept of building relationships with students in order to escalate the relationship to a sexual nature is commonly referred to as grooming and is a criminal offence in NSW.

When reporting the allegations and findings of the investigation to the Ombudsman the school’s headmaster referred to BVN’s conduct as ‘possible grooming behaviour’. The Tribunal found that in the context of all matters found against BVN the non-physical interaction formed part of a ‘worrying course of conduct’.

The NCAT’s determination

While BVN contended that he had acted appropriately and professionally and took issue with the fairness of the internal investigation, the NCAT was satisfied that the Children’s Guardian had made the correct decision to refuse BVN a WWCC clearance as he did in fact pose a real threat to children.

Although the allegations were made over a decade ago, BVN maintained his consistent denial of any wrongdoing or inappropriate behaviour. It was found that BVN has not gained any insight into the unprofessional or worrying nature of his conduct and as such the NCAT had no confidence that he would not repeat the same misconduct toward children.

A message for schools

This case demonstrates how clear and well communicated policies concerning professional boundaries between staff and students can shift the onus from a school to the individual in cases examining alleged professional misconduct or possible grooming behaviour. The school in this case implemented an established procedure for responding to allegations against a staff member by conducting an internal investigation, reporting the misconduct to the appropriate body and terminating the employee when it was determined that his behaviour posed an unacceptable risk to students.

Unfortunately this is not always the case in many schools. Recent hearings at the Royal Commission into Institutional Responses to Child Sexual Abuse have revealed that some schools choose not to investigate allegations in fear of wrongful termination suits against them or because they are unaware of their obligations to report grooming conduct, choose not to investigate allegations fully or dismiss an employee, allowing some matters to escalate.

Schools should be aware of their powers to remove or suspend a teacher from the school if their behaviour poses a threat to students or if they continuously breach policies. Also, schools should ensure that all staff understand the school’s duty to report to regulatory bodies such as the Ombudsman in NSW or the Victorian Institute of Teachers (VIT) (and equivalent authorities in other States and Territories) in cases of staff misconduct, especially as these obligations are often subject to change. For example, Victoria has recently introduced a new Bill to Parliament that will allow the VIT to suspend a teacher’s registration before an investigation has begun, rather than at the conclusion of an investigation, to prevent any risk of further harm to students during the VIT’s investigation into the teacher’s misconduct.