Introduction

Teachers who cross professional boundaries with students are a matter of grave concern to students, parents, educators, and the general community. Unfortunately, identifying, investigating and managing teacher/student misconduct continues to be a challenge for schools today. 

Employment law and teacher misconduct 

In addition to a general duty of care, industrial law decisions in Australia have recognised the special category of employment relationship that pertains to the obligations of fidelity, loyalty and trust attaching 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 judicial officer emphasised that a school will generally have no choice but to terminate the employment of a teacher where misconduct against a student is alleged: 

“… 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 have been further expanded upon and applied in recent cases in which the author has acted for schools, including Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341 and the subsequent appeal.

Contemporary snapshot 

Despite the advances in training and compliance over the last several years, sexual misconduct continues in schools today. The 2023 Annual Report from Victoria’s Commission for Children & Young People (CCYP) concerningly states that the CCYP “continues to see instances where organisations misunderstand the scope of ‘sexual misconduct’ …  or appear reluctant to characterise behaviour as ‘sexual misconduct’, despite there being a proven pattern of overly personal and intimate conduct towards a child or conduct that seriously crosses professional boundaries”.

The Annual Report indicated there had been a 52% increase in notifications of sexual misconduct from non-government independent schools and an 18% increase from Catholic schools.

Nature of the misconduct

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

In Victoria, 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.

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 by the U.S. Department of Education provided some disturbing 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.

It is important for school leaders to understand that very few students readily report allegations against teachers. The US study estimates that only about 6% of all children report sexual misconduct by an adult to someone who can do something about it. The other 94% 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 that are 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.

Ensuring allegations of sexual misconduct are properly identified and investigated is crucial. Contemporaneous evidence, such as CCTV footage must be preserved. A competent independent investigator, skilled in interviewing children should be appointed to undertake a detailed investigation. 

Misuse of social media by teachers

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. For example, in one recent case in the Fair Work Commission, a teacher posted a tweet on Twitter which referred to a “wet dream”. The tweet was discovered by an aggrieved parent of a student at the school. 

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.

Misuse of school devices by teachers 

Lines can be crossed if a teacher uses a school device for personal use. In one recent case, the discovery of previously deleted 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.  

The Fair Work Commission held that in that case it was 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 communications with students

Professional lines can be crossed when teachers blur their role as an educator with one of a “friend” with a student. Sometimes in isolation, the communications do not appear sinister. However, when viewed objectively over a period of time, the communications blur professional boundaries and cross lines, which should cause schools considerable concern.

In one recent case involving a school in Victoria, the Fair Work Commission found that the following email communications (amongst others) by a teacher to various male students under the age of 17 years amounted to misconduct and were a valid reason for dismissal:

• “…too late to warn me not to miss you too much, I miss you terribly. I ask the other guys about you every day”.
• “…I really enjoyed spending time with you …  I’m honoured to be your friend...”.
• “…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…”.“…Thanks for all your friendship and support in the year so far…”.
• “…It is such a privilege to be your friend and mentor.”

Schools must be vigilant in identifying inappropriate written communications between teachers and students. Some of the above communications were sent to students late in the evening. 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

Australia’s Royal Commission into Child Sexual Abuse 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 carefully drafted 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
• Professional boundaries
• Corporal punishment
• Transportation of students in vehicles
• Laptop use guidelines and social media expectations
• Sexual harassment, bullying and discrimination (towards staff and students)
• Private tutoring
• Consequences of reputational risk 

Schools are encouraged to educate workforces on the content of the Code and use the Code to support investigative and disciplinary processes. 

Conclusion 

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

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. Schools should seek advice about the best way to respond when confronted with staff who cross professional boundaries and engage in misconduct towards children.