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Disciplinary Tribunal Decision 2005-2

Fri 04 Nov 2005
Inappropriate relationship with a student
This teacher was referred to the tribunal for forming an inappropriate sexual relationship with a student while he was employed at the Auckland school

NZTDT 2005-02


NZTCDT 2005/2



The Education Act 1989


of charges brought by the Complaints Assessment Committee of the New Zealand Teachers Council









Chairman: Mr Kenneth Johnston. Members: Ms Lyn Brash, Ms Irene Cooper, Dr Margaret Franken, Mr Neil Schroff


Tuesday 19 October 2005


Friday 4 November 2005


Ms Gaylene Phipps for the Complainant
Ms Nicole Carter for the Respondent



By Notice of Charge dated 1 July 2005, the New Zealand Teachers ' Council's Complaints Assessment Committee charges the respondent with serious misconduct, and in particular that during the 2004 scholastic year the respondent had a sexual relationship with a pupil at the Auckland school at which he was then a teacher.

The respondent admits the allegation of serious misconduct as particularised.

The hearing proceeded on the basis of an agreed statement of facts, and it is on the basis set out in that statement that the Tribunal approaches the case.

The respondent did not attend the hearing, although, through Ms Carter, he put in a letter dated 13 July 2005 admitting the charge against him, admitting the existence of the sexual relationship with the student, and expressly accepting that this amounted to serious misconduct.

Both Ms Phipps for the Complaints Assessment Committee and Ms Carter for the respondent made submissions directed at the circumstances of the case and relating generally to the issue of penalty, although we record that Ms Phipps did not make submissions as to the appropriate penalty.

The Factual Background:

The agreed statement of facts records that by letter dated 18 March 2005 the school at which the respondent formerly taught reported the respondent's resignation to the New Zealand Teachers' Council as it was obliged to do pursuant to s139AK of the Act. The school's report, which was not before us, apparently recorded that the respondent had admitted a sexual relationship with a student during the 2004 year. The student, who it is unnecessary to name in this decision, was a year 13 student during the 2004 year, and in one of the respondent's classes. The report also indicated that the school's Board became aware of the relationship as a result of a report from the student. The school's board initiated a disciplinary process which culminated in a meeting on 9 March 2005 at which the respondent admitted the existence of the relationship to a disciplinary committee and resigned. At that meeting, the respondent spoke to a preprepared written statement, a copy of which we have been provided with as an annexure to the agreed statement of facts. When the matter was referred to the New Zealand Teachers' Council, the respondent was offered an opportunity to meet with the Complaints Assessment Committee but declined that invitation. Subsequent to the Complaints Assessment Committee's decision to refer the matter to this Tribunal, the respondent made a request pursuant to s 127(1)(e) of the Act to be deregistered, and that has now occurred. The Complaints Assessment Committee resolved that the respondent's conduct met the threshold test for serious misconduct and as a result referred it to this Tribunal.


We have considered the helpful submissions made by both Ms Phipps and Ms Carter. We have also reviewed and taken into account the respondent's statement, at the same time being mindful that this was prepared for the Disciplinary Committee.

In a case such as this, the Tribunal's responsibility is generally to determine whether or not the respondent has been guilty of serious misconduct. That is admitted here, with the result that, subject to one point, there is no need for us to dwell on that issue.

The qualification arises as a result of what we have found a somewhat obscure submission made by Ms Carter for the respondent. As she says, s139AW of the Act does not expressly say that in order for this Tribunal to exercise any of the powers set out in ss (1) of that section it must first made an adverse finding against the respondent, and she submits that the Tribunal should only consider exercising any of those powers where it has first reached such a finding. We agree. In our view, that is a matter of necessary implication from the legislation. Ms Carter then raises the issue of whether we must find that a respondent coming before us is guilty of serious misconduct (as that term is defined in the Act) before we are entitled to exercise any of the powers in ss(1), and appeared to submit that our jurisdiction is so limited. We do not accept that submission.

Whilst the scheme of the legislation, viewed very generally, may be that the Complaints Assessment Committee is expected to be dealing with cases of misconduct and this Tribunal is expected to be dealing with cases of serious misconduct, it appears to us that the legislature clearly contemplated the Tribunal dealing with all cases properly before it. That, in our view, is one of the reasons why s139AW (1) includes amongst the Tribunal's powers the power to do any of the things that a Complaints Assessment Committee is entitled to do under s139AT(2).

To avoid any possible confusion, we record that our view is that, once a case is properly before this Tribunal (whether as a result of a reference by a Complaints Assessment Committee pursuant to sI39AT (4) or otherwise), the Tribunal's responsibility is to determine whether the respondent is guilty of any "professional offence", whether misconduct or serious misconduct. In the event of the Tribunal reaching an adverse conclusion, it is then entitled to exercise any of the powers set out in s139AW (1). It follows from this that if the Tribunal does not reach an adverse finding of one sort or another, it should not exercise any of those powers.

We observe that, in our view, the admission of responsibility in this case is rightly made. Reviewing the agreed statement of facts, we are left in absolutely no doubt whatsoever that this respondent has been guilty of serious misconduct. In another case, the decision in which will be released with this decision, we observed that we find it difficult to conceive of any situation in which a teacher enters into a sexual relationship with a student who is attending the school at which that teacher is employed which would not amount to serious misconduct on the teacher's part (see NZTDT 2005/1). As . we said in that case, there may be such situations, and we are not precluding that possibility, but they are very difficult to imagine.

Conclusion and Penalty:

That brings us to the question of the appropriate penalty.

This case has some very disturbing features.

We do not know, because this information is not included in the agreed statement of facts, the precise ages of either of the parties. But it is clear that the respondent was a mature man, and the student was no doubt in her mid to late teens. At the relevant time, this respondent was a senior teacher. He had had an earlier career prior to commencing teaching in 1995, and, by the 2004 year, he was the head of the Departments of Geography, Travel and Tourism and Classical Studies in the school. We are told that he was also the author of several academic publications. Plainly, he was a person in some authority within the school. Against that background, he embarked upon a sexual relationship with a year 13 student. On any view, the respondent grossly abused his position.

There is an inconsistency between the position taken by the respondent before the school's disciplinary committee on the one hand and the agreed statement of facts put before us on the other. To the school, the respondent said that he choose to deal with the issue which had developed by informing the principal of the school, and his partner, of the existence of the relationship. In contrast to that, the agreed statement of facts records that the school's Board became aware of the issue as a result of a report from the student to another teacher. For our part, we are forced to conclude that the respondent was not entirely frank with the Disciplinary Committee.

We are also very concerned to see, in the respondent's statement to the Disciplinary Committee a theme which involved him identifying the student's personality traits as a significant element of the problem. This suggests to us that at least at the time of that statement the respondent did not have a grasp of the extent to which he was the person in authority who allowed the situation to develop in the first place and must take responsibility for it.

As against those considerations, we accept that there are some points which are properly put forward by Ms Carter on the respondent's behalf. Ms Carter makes the point that XXXXXXXXX has never made any attempt to deny the existence of the relationship. She adds that the respondent voluntarily resigned from his position at the school and voluntarily sought his own deregistration, although of course he may have had no real alternative to either of those courses. She emphasises that, before us also, the respondent accepted that he had been guilty of serious misconduct. Ms Carter also picked up on a theme which emerged out of the respondent's statement to the Disciplinary Tribunal namely that the relationship developed out of an attempt on the respondent's part to provide assistance and support for a student. Whilst that may be so, the reality is that providing assistance and support to students is a critical component of any teacher's responsibility. We do not regard this as a very powerful point in his favour. Ms Carter went on to say that these events have had a very serious impact on the respondent, physiologically and psychologically. We accept that. Finally, Ms Carter quotes certain passages from the respondent's statement to the Disciplinary Tribunal in which he expresses remorse and regret. We accept that the respondent regrets what has happened in this case.

In the end, Ms Carter's submission was that "given [this respondent's] cooperation with the disciplinary process and the fact that he is already deregistered a suitable penalty is the placement of his name on the cancelled teachers ' list. At this stage his instructions are that he does not intend to teach again."

We do not accept that would be an appropriate approach in this case.

For the reasons we have attempted to summarise in this decision, we regard this case very seriously indeed.

In the result, we order:

(a) This respondent's deregistration pursuant to sI39AW(1)(g);

(b) That the respondent be fined the sum of $2,500 pursuant to s139AW(1) (f);

(c) That the respondent be ordered to contribute to the costs of this hearing in the sum of $2,500 pursuant to sI39AW (1) (i).

DATED this 4th day of November 2005


Kenneth Johnston