I have previously reported on the dismissal of Mr Costello from Queensland Ambulance (see Dismissal of Queensland paramedic for unlawful drug use on duty confirmed (June 29, 2019). This decision has now be reversed by the Industrial Court in Costello v State of Queensland (Department of Health, Queensland Ambulance Service)  ICQ 003 (and I thank qas005597 for flagging that this decision was forthcoming).
The court set out the facts as follows:
- On 2 June 2016, Jay Costello was employed by Queensland Ambulance Service as an Advanced Care Paramedic. He and two other officers were called out to assist an elderly woman who had fallen and broken her shoulder. In order to help her deal with the pain, she was administered a Penthrox inhaler, which is a non-opioid, pain relief inhaler commonly used in trauma settings. It is often called a Penthrox “whistle”.
- The injured woman was admitted to hospital. Sometime after that, Mr Costello went to the toilet. He was gone for some time. His colleagues looked for him and found him in a stall, sitting on a toilet with his pants up and holding a Penthrox whistle. His colleagues both reported that the room smelt strongly of methoxyflurane, which is the major constituent of the Penthrox whistle. He was observed to have bloodshot eyes and seemed emotional. A nurse reported that she saw him stumble out of the toilet and observed that his eyes were bloodshot and he seemed quite upset. The Penthrox whistle was disposed of and Mr Costello was admitted to the hospital overnight for observation. A blood sample was taken but there was no evidence that it was ever tested.
- On the following day, Mr Costello was suspended while a formal investigation process took place … His employment was later terminated on 31 October 2016.
- Mr Costello sought reinstatement but was unsuccessful and now appeals that decision.
Grounds of appeal
The notice of appeal contains numerous grounds but, at the hearing, only three were pressed. They are:
(a) That the Deputy President erred in law by finding, contrary to the evidence, that the appellant had been provided with transcripts of the investigator’s interviews at the time he was asked to show cause.
(b) The Deputy President erred by finding, contrary to the evidence, that there was “no readily available” blood test that could have been undertaken at the relevant time to establish if methoxyflurane was present in the appellant’s blood.
(c) The Deputy President failed to give weight to a direction in the respondent’s Drug Management Code of Practice concerning the rehabilitation options available for officers suspected of substance misuse.
In the first hearing Deputy President Bloomfield took comfort from the fact that ‘Mr Costello was provided with a copy of Mr Berry’s report, as well as the transcripts of all the interviews he conducted, at the time he was asked to show cause why disciplinary action should not be taken against him…’ and he did not raise matters raised by one witness, Mr Young, or make submissions on why those were relevant or what the Tribunal should make of those comments. It was accepted that this was an error (at ) ‘Mr Costello was not provided with those transcripts.’ It is not clear why he was not given those transcripts or how the Deputy President was led into error.
Regardless of how the error occurred, Martin J said (at  and ):
Where there is material (that is in the possession of the employer and is not the subject of legal professional privilege) that could be read in a way that might assist an employee going through a disciplinary process and that is not provided to that employee, then it cannot be said an opportunity has been given to respond to the “allegation about the conduct, capacity or performance”…
The finding made by the Deputy President was not supported by any evidence and, thus, was an error of law. Further, the Deputy President placed weight on the fact that Mr Costello had not raised “the matter of Mr Young’s comments, or anything which should be made of them …”.
At  Martin J said:
This ground concerns the submission that the respondent failed to undertake or arrange any test to determine whether there was methoxyflurane present in Mr Costello’s system on the night of the incident. Mr Hammond, the then-Assistant Commissioner of the QAS, agreed in his evidence that if a test for the presence of methoxyflurane was available, fairness would dictate that an officer suspected of drug abuse or misuse be given that test.
The Deputy President found (at ) that ‘there was no readily available test which could have been requested’ to establish whether or not there was methoxyflurane in Mr Costello’s body. According to Martin J (at )27]) that conclusion ‘was one which was able to be inferred from the evidence provided to the Commission’ so there was no error.
At - Martin J said:
The applicable drug management code of practice provides that officers suspected of substance misuse “… may be referred for drug rehabilitation which will be managed by their LASN [Local Ambulance Service Network] Manager (facilitated by the LASN Organisational Health Adviser or equivalent role) with medical input from the Director, Clinical Quality and Patient Safety and Executor Director, Medical Services when required.”
The ground of appeal here is that the Commission failed to give weight to the possibility of such a direction..
Martin J agreed that in the Industrial Relations Commission the Deputy President should have considered whether QAS should have considered a rehabilitative approach. He said (at  ‘This [rehabilitative approach] was an issue which should have been taken into account when considering the fairness of the dismissal. The failure to consider that constitutes an error.’
Martin J (at ) ‘The appellant has succeeded in two of the three grounds advanced by him and the appeal is allowed’ but that did not resolve the matter. Mr Costello wanted an order that the matter be sent back to the Industrial Relations Commission with an order that they redetermine the matter.
The Court did not make a final order resolving the matter, rather His Honour invited the parties to make further submissions on what should be the final resolution. I will keep an eye out to see if the Court reports the final outcome of the matter- of course the parties may come to an agreement on the outcome and there may be no further judicial decision.
The Industrial Court was not deciding whether or not Mr Costello should have been dismissed, rather it was considering whether the Deputy President in the Industrial Relations Commissions had acted as required by law.
The finding was that the hearing in the Commission miscarried in part because the Deputy President believed that Mr Costello had received all the material collected by QAS. The Deputy President found that the original decision maker had not made an error because he did not address, and was not asked to address, matter in a statement by Mr Young. In the court it was conceded that Mr Costello had not received that material. That Mr Costello had not received that material meant that he had not had a proper chance to respond to the allegations. In short there was an error both at the initial level in not giving this material to Mr Costello and then an error on review when the Commission’s finding that the decision maker did not have to consider the material was made because of the erroneous belief that Mr Costello had received that material and had not addressed it in his submissions.
The other error was that the Commission, when considering whether the dismissal was unfair, should have given thought to whether QAS, in accordance with its own policy, should have considered taking a rehabilitative rather than punitive response.
What happens to Mr Costello and his career with QAS giving these findings remains to be determined.