In brief - Any conduct by teachers towards students in schools that crosses professional boundaries should be of grave concern to students, parents, educators, and the general community. Unfortunately, statistics that are available identifying misconduct in contemporary school environments suggest that conduct crossing professional standards is a major challenge for schools today. 

Particular employment relationship

According to Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), given “the foundational role of schools in the lives of almost every child, they have a unique responsibility to keep children safe. This is not only to fulfil their child protection responsibilities, but also because being safe and supported at school is essential for effective learning.”

In addition to a general duty of care, industrial decisions have recognised the special category of the employment relationship that pertains to the obligations of fidelity, loyalty and trust attached to the role of a teacher in a school. In Puccio v Catholic Education Office and Catholic Church Endowment Society (Incorporated) [1996] IRCA 198, the judge stated:

“… the care, safety and well-being of students is a matter also entitled to great weight. Where a teacher commits a clear breach of a direction squarely related to safety and welfare issues after due warning, the school, generally speaking, will be left with no option but to terminate the services of the teacher. To allow the teacher to continue would be a foreseeable risk of further transgression by the teacher to occur…. So important is the duty of care resting on an employer where safety issues are involved, that the employer may have a valid reason …. to dismiss an employee even where reported misconduct is disputed by the employee….”  

The industrial principles encapsulated in this litigation from 1996 were further expanded upon and applied in the recent high-profile decision in Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341, which involved a private boys’ school in Melbourne and the subsequent appeal. The author acted for the school and governing body in both those decisions. 

Contemporary snapshot 

Despite the advances in training and compliance over the last several years, sexual misconduct continues in schools today. The Annual Report of the Victorian Commission for Children & Young People (CCYP) released on 10 December 2020 reported that in 2019–20, the largest increase in conduct type reported to the CCYP related to sexual misconduct allegations (an 18% increase when compared to the previous reporting period). 

In non-government Independent schools, sexual misconduct was the most common allegation type, accounting for 43% of all reportable allegations. Over half of all sexual misconduct allegations were in respect of children aged 10–17 years (54%).

What is sexual misconduct?

A great deal of conduct by teachers towards students crossing professional boundaries in a contemporary school setting involves sexual misconduct. 

The Child Wellbeing & Safety Act 2005 (Vic) states that ‘sexual misconduct, committed against, with or in the presence of, a child’ is a type of reportable conduct which must be notified to the CCYP by schools in Victoria. 

CCYP defines the term “sexual misconduct” as a “type of reportable conduct is intended to capture a broad range of misconduct of a sexual nature that can pose a significant risk to children, even if it falls below the criminal threshold”. Key features of the definition, according to CCYP, include:

  • Conduct can be misconduct if it involves a departure from the accepted standards of the role performed and the misconduct is intentional or seriously negligent; 
  • Misconduct can occur across various scenarios such as in person communication and online communication (including email, social media, telephone, SMS, etc.);
  • A ‘one off’ incident that occurs as the result of an innocent mistake or poor judgment will not usually amount to misconduct. However, it is possible that a single instance can amount to misconduct. For example, if the conduct involves a substantial departure from the accepted standards or has serious consequences.;
  • Persistent less serious breaches can amount to misconduct, especially if the conduct continues to occur;
  • Factors to take into account as to whether conduct is of a “sexual nature” includes the area of the body involved in the conduct; whether at least one of the reasons for the conduct was for sexual arousal or gratification, or whether the conduct was overly personal or intimate. 

Accordingly, the definition of sexual misconduct is likely to capture numerous circumstances in schools, and educators need to be vigilant in identifying and investigating such behaviours. 

Practical considerations for schools 

It is instructive for schools to understand the type of misconduct they must investigate and respond to in order to comply with mandatory reporting and other regulatory obligations, such as reportable conduct. The CCYP Annual Report does not reveal the factual circumstances of individual case studies. However, an informative study undertaken into educator sexual misconduct in the United States in 2004 provides some accurate examples of the type of behaviour that is commonly reported by students in contemporary school settings, to include touching; kissing; hugging or other forced physical contact.  

Intimate behaviours that cross-professional boundaries must always be investigated as potential sexual misconduct. However, it is important for school leaders to understand that very few students readily report allegations. A US study estimates that only about 6 percent of all children report sexual misconduct by an adult to someone who can do something about it. The other 94 percent do not tell anyone or talk only to a friend (and often swear their friend to secrecy). 

The same report made the following observations:

  • While formal reports might not be made in school, informal information is often passed on through rumour, innuendo, and jokes. Often it is a friend of the target or a parent of a friend who brings the issue to school authorities; 
  • The most common reason that students don’t report educator sexual misconduct is fear that they won’t be believed; 
  • Adults the subject of allegations from children almost always deny the allegations. There is a belief that children sometimes make up complaints. Yet, a 1995 study of 225 allegations of educator sexual misconduct in the United States found there was not one in which the actions reported were not proven to have happened. 

Schools should never operate on the assumption, prior to concluding an investigation, that an allegation of misconduct raised by a student against a teacher has been made up. 

Ensuring allegations of sexual misconduct are properly identified and investigated is crucial. Contemporaneous evidence, such as CCTV footage must be preserved. A competent investigator should be appointed to undertake a detailed investigation. The Royal Commission found that in many historical cases, investigations were incompetent and not carried out by a qualified person, or children were interviewed inappropriately. There was often confusion about the standard of proof required to substantiate allegations and the threshold for reporting suspected abuse. 

Flawed investigations remain an issue today. A common theme in historical case studies examined by the Royal Commission was that many institutions responded to child safety risks by conducting internal investigations, without involving independent agents, such as lawyers or independent investigators. This removed both the abuse and the response from external scrutiny. Sometimes this approach allowed the perpetrator to offend against other children.

Social media misuse 

Activities of teachers that cross the line on social media and pose reputational risks to schools have been held to amount to a valid reason for dismissal, even if it is only parents (rather than the public at large) where reputational harm is suffered. In a recent decision in Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341, in which the author acted for the school, a teacher posted a tweet online (outside of school hours on a person Twitter account) which referred to a “wet dream”. The tweet was discovered by a parent. The context of the factual circumstances involving the teacher’s misconduct and the sexualised nature of the tweet was sufficient enough for the Fair Work Commission to hold that the tweet damaged the school’s reputation with the parent who discovered it and was a valid reason for dismissal of the teacher (amongst other reasons). 

Schools should ensure detailed Codes of Conduct clearly outline expected standards both during and outside school hours and include express terms relating to reputational damage posed by teacher misconduct as a ground for disciplinary action.

Accessing, viewing and storing pornography on school devices

Lines can be crossed when staff in schools use school devices for personal use. In Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341, the discovery of previously deleted hard core pornographic videos on a teacher’s school laptop, even though discovered after his dismissal, was held to be serious misconduct and a basis for summary dismissal. In particular, the Commission held that it is conceivable that the pornography was on the teacher’s laptop when it was being used to teach students. Such conduct was held to be reckless and in breach of the school’s Code of Conduct and laptop acceptance policy. The Commission held there “was a serious and imminent risk to the health and safety of students were they to accidentally view the material, and a risk to the reputation of the [teacher], were it to be discovered that a teacher that it had employed was watching and storing this material on a school device. It was serious misconduct.”

Inappropriate emails to students

Professional lines can be crossed when teachers blur their role as an educator with one of “friend” with a student. It is surprising that school information technology infrastructure frequently fails to identify inappropriate email communications between teachers and students. Sometimes in isolation, the communications do not appear sinister. However, when viewed over a period of time, the communications blur professional boundaries and cross lines, which should cause considerable concern.

In the recent decision referred to above, the dismissed teacher appeared unable to comprehend the blurring of boundaries by his regular practice of emailing students in an overly familiar and affectionate manner. The Fair Work Commission found that the following communications by the teacher to various male students amounted to misconduct and were a valid reason for dismissal:

Email Date Email Text from Teacher
7 November 2013 “…friend for life 😊)”
23 March 2017

…too late to warn me not to miss you too much, I miss you terribly. I ask the other guys about you every day. Hope some of them have contacted you.

Take care big guy,

18 August 2017 “…I really enjoyed spending time with you. I’m honoured to be your friend, and I look forward to working with you even more closely as your VCE continues.”
29 March 2018 – 31 March 2018 “…Thanks for all your friendship and support in the year so far. Many more good times to come."
26 September 2018

“…Still smiling over your beautiful email to me from Monday night. I respect you all the more for taking the time to mention your appreciation so sweetly. I enjoy the time we spend together doing school work, and our friendship means the world to me.

See you tomorrow bud.

Your friend, "

 

30 September 2018 “…It is such a privilege to be your friend and mentor.”
24 October 2018 “…I will cherish these photos. Happy memories of six happy years of friendship, all centered around our musicals. Thanks for always being such a great friend.

Schools must be vigilant in identifying inappropriate written communications between teachers and students. Some of the above communications were sent to students in the evening. Once again, clear codes of conduct must regulate behaviours in this area, particularly if schools seek to remove unsuitable people to work with children and defend dismissals. 

The value of Codes of Conduct in schools

The Royal Commission stated that "A code of conduct or similar guideline should be in place so that staff and volunteers understand their obligations and responsibilities and institutions can determine whether the conduct meets the accepted standard". 

A robust Code of Conduct is an excellent way to identify, investigate and resolve misconduct amongst staff. The most effective Codes of Conduct cover topics such as:

  • Grooming 
  • Corporal punishment 
  • Not being alone with children 
  • Appropriate management of student discipline 
  • Transportation of students in vehicles 
  • Laptop use guidelines and social media expectations 
  • Sexual harassment, bullying and discrimination (towards staff and students)
  • Conflicts of interests
  • Private tutoring
  • Consequences of reputational risk 

Schools are encouraged to educate their workforce on the content of the Code and use the Code to support all disciplinary processes. 

Interface with industrial obligations 

When investigating and acting upon allegations and complaints, schools will need to consider and comply with industrial obligations, including policies, contracts and enterprise agreements to ensure procedural fairness to the extent possible. However, in doing so schools should not prioritise the industrial rights of perpetrators over the safety of children. The Fair Work Commission has minimised deficiencies in procedural fairness where the gravity of a teacher’s substantiated misconduct towards a student requires the immediate removal of the person from the school - refer to Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 at [308]. However, schools must not deliberately breach due process clauses in industrial instruments, otherwise contraventions may be alleged under the Fair Work Act 2009 (Cth). 

Conclusion 

How offenders of sexual misconduct are disciplined must be carefully considered by schools. It will be very rare (if ever) that such an individual is permitted to continue to work with children where substantiated allegations of misconduct involving a student have been found. There is limited, if any, room for rehabilitation if a staff member in a school has engaged in substantiated sexual misconduct against a student. 

While most staff will have access to unfair dismissal or other laws to challenge their dismissals, alleged perpetrators will have a difficult time convincing a Tribunal that they should be reinstated to their employment, or even compensated, particularly if the evidence of child victims has been accepted as truthful. 

If a staff member does press on and dispute their dismissal, then depending upon the postcode of the school, there is likely to be significant media interest in their case. 

It is essential that schools consider the identification, investigation and resolution of misconduct by staff towards students as an important ongoing matter of public policy. A major issue that was identified by the Royal Commission which continues to this day is that individuals the subject of complaints were not disciplined adequately, or at all, and were not held to account for their conduct towards children. This non-action resulted in schools allowing teachers to resign when complaints of child sexual abuse were made, transferring them to other schools, or giving them positive references that enabled them to teach in other schools and thereby exposing other children to the risk of abuse. These insidious practices must not continue.  Schools should seek professional advice about the best way to respond when confronted with staff who cross professional boundaries and engage in misconduct towards children. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.

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