INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Costello v State of Queensland (Department of Health, Queensland Ambulance Service) [2020] ICQ 003	
PARTIES:	JAY COSTELLO
(appellant)
v
STATE OF QUEENSLAND (DEPARTMENT OF HEALTH, QUEENSLAND AMBULANCE SERVICE)
(respondent)	
FILE NO/S:	C/2019/17	
PROCEEDING:	Appeal	
DELIVERED ON:	13 March 2020	
HEARING DATE:	22 October 2019	
MEMBER:	Martin J, President	
ORDER/S:	Appeal allowed.	
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – OTHER MATTERS – where the appellant was suspected to have abused or misused methoxyflurane – where a blood sample was taken but not tested –  where the appellant was invited to respond to allegations of misconduct – where the appellant was given seven days to show cause – where the appellant was not provided with transcripts of interviews from the investigation at the time he was asked to show cause – where the appellant’s employment was terminated – where the appellant sought reinstatement and was unsuccessful – whether the Commission erred in law by finding that the appellant had been provided with transcripts of the investigator’s interviews at the time he was asked to show cause – whether the Commission erred by finding that there was ‘no readily available’ blood test at the relevant time – whether the Commission failed to give weight to a direction in the Drug Management Code of Practice concerning rehabilitation options
Ambulance Service Act 1991, s 18M
Industrial Relations Act 1999, s 77(c)(ii)
Industrial Relations Act 2016, s 320(c)(ii)	
CASES:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited
R v Birks (1990) 19 NSWLR 677, cited
Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57, cited
Wadey v YWCA Canberra [1996] IRCA 568, cited	
APPEARANCES:	J Murdoch QC and E Shorten instructed by Cube Workplace Relations for the appellant
G Dann instructed by GR Cooper, Crown Solicitor for the respondent	

[1]	
[1]	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”. 
[2]	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.
[3]	On the following day, Mr Costello was suspended while a formal investigation process took place in accordance with s 18M of the Ambulance Service Act 1991. During that investigation, a number of employees were interviewed. The applicant was invited to attend an interview and to respond to three allegations of misconduct. On 22 September 2016, Mr Costello was advised that each of the allegations against him had been sustained and he was given seven days to show cause as to why the proposed disciplinary action of termination of employment should not be taken. His employment was later terminated on 31 October 2016.
[4]	Mr Costello sought reinstatement but was unsuccessful and now appeals that decision.
Grounds of appeal
[5]	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.
First ground - the provision of transcripts
[6]	In his reasons, the Deputy President dealt with submissions made to the effect that the report provided about the investigation of the allegations against Mr Costello did not mention certain evidence. That evidence was to the effect that Mr Costello was seen to have been unsteady on his feet, his speech was not fast, and he was reacting as if he was under the influence of something which led one witness to say that he was “carrying more than methoxy on board”.
[7]	The Deputy President dealt with this in a number of ways. Of importance is that he said:
“[137]	… The second point to be made is 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. However, he did not raise any issues about Mr Young’s comments in either his first or second responses to Mr Hammond’s show cause letters.
[138]	… Given that Mr Costello did not raise the matter of Mr Young’s comments, or anything which should be made of them, one would have to question why Mr Emery would need to turn his attention to that matter.”
[8]	The respondent accepts that the Deputy President was in error in making the finding about the provision of transcripts. Mr Costello was not provided with those transcripts. 
[9]	At the time of the investigation by the respondent, s 77(c)(ii) of the Industrial Relations Act 1999 required the Commission, in deciding whether a dismissal was harsh, unjust or unreasonable, to consider “whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance”. 
[10]	At the hearing before the Deputy President, it was submitted on Mr Costello’s behalf that the investigator had erroneously disregarded the evidence of Mr Young. No specific submission was made with respect to the appellant not having been given an opportunity to respond to Mr Young’s evidence. Mr Costello made a general submission to the Commission to the effect that he was not given a “true opportunity” to respond.
[11]	The Deputy President found that the appellant was given that opportunity. 
[12]	The extent to which an employee should be given an opportunity to respond to allegations about conduct, capacity or performance will depend upon the nature of the allegations and the evidence which is available. If an employer were to have evidence in its possession which was exculpatory but did not convey that information to the employee, then the employee would be denied an opportunity to respond to the allegations in accordance with the Act because the employee’s response could not take into account the exculpatory material. The respondent submits that, while the Deputy President erred in finding that the Young transcript had been provided, and that constituted an error of law, it does not require a change in the decision made. 
[13]	It will assist if part of the relevant interview is set out. Mr Young had been with the Ambulance Service for 37 years when he took part in the interview. The kernel of the exchange between the interviewer and Mr Young was the following question and answer:
“Would you in your professional opinion, consider his general appearance to be similar to patients that have received a dose of methoxyflurane in the past?
No, receiving methoxyflurane as we know it, it’s a short acting drug. Once the stick’s removed from the mouth, you’re back to reality. His seemed to be more long term. Considering he was with Terence for quite a while, if he had taken that it should have been out of his system. There was, he was obviously, from my opinion, carrying more than methoxy on board.”
[14]	The appellant says that he was denied the opportunity to rely on Young’s evidence in his submissions to the employer. Young’s statement was potentially exculpatory. It can be read in at least two ways – one of which might lead to a finding that he had not used methoxyflurane.
[15]	The argument for the respondent was in three parts. First, that Mr Costello did not argue before the Commission that he was unable to respond to the allegations against him because he did not receive the transcripts during the show cause process. Secondly, it is argued that Young’s evidence is ambiguous and could not be regarded as exculpatory. Thirdly, Young’s evidence was considered by the decision-maker and, having considered it, he preferred other evidence on the relevant question for reasons which he explained in his evidence to the Commission.
[16]	It is correct to say, as the respondent does, that as a general rule, a party is bound by the conduct of his or her counsel. But, in this case, the conduct of the appellant’s representatives did not lead the Deputy President into error. The mistake that was made was not one brought about as a result of submissions made. 
[17]	Secondly, while the evidence of Young might be considered to be ambiguous, the point is not whether it was considered by the decision-maker but whether Mr Costello was given an opportunity to respond to the allegation.
[18]	The third point made by the respondent similarly overlooks that statutory requirement. It does not matter that the decision-maker might have taken into account Young’s evidence and discounted it. The point is whether or not the employee was given the opportunity to respond referred to in the Act. 
[19]	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”.
[20]	Just as an employer must disclose relevant, adverse material, the requirements of fairness which are implicit in s 77 of the Industrial Relations Act 1999 mean that the “opportunity to respond” must include the ability to rely upon favourable material. As Moore J said in Wadey v YWCA Canberra “… the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance.” So far as this issue is concerned there is no relevant difference between an “opportunity to respond” and an “opportunity to defend”.
[21]	It is not for the Commission to speculate upon the effect that such material might have had if it had been made available. The statute requires consideration of whether or not an opportunity was given as required by the statute. In this case, it was not. 
[22]	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 …”. 
Ground 2 – “no readily available blood test”
[23]	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. 
[24]	In the submissions to the Deputy President, it was said that an expert, Professor Ogden, “gave unequivocal evidence that such a test would clearly be possible”. To describe his evidence as “unequivocal” is inaccurate. He did say that a test would clearly be possible but that was subject to the caveat that the opinion he was asked to express was outside his area of expertise. He went on to say that “it ought, theoretically, to be possible”. Professor Ogden nominated Dr Robertson (another witness) as someone who should be asked those questions. That did not occur. 
[25]	The Deputy President referred to that evidence and made the observation, correctly with respect, that neither witness could state with any certainty that such a test was available at the time of the hearing let alone whether it would have been available on 2 June 2016. He went on to say:
“[148]	… One would have thought that having for-knowledge that the issue of blood tests for the presence of methoxyflurane would have been high on the list of matters they were likely to be questioned about, each witness would have made some enquiries about that topic before they prepared their witness statement or, at the very least, before they gave their evidence.”
[26]	The Deputy President went on to conclude that there was no readily available test which could have been requested. The more important aspect of his conclusion on this point was:
“[149]	… given that all of the relevant witnesses from the Respondent who gave evidence said they had never heard of a test for possible methoxyflurane use, no criticisms can be made of the QAS managers who were involved on the night for their failure to ask for such test to be undertaken.”
[27]	Whether or not the Deputy President was in error, appellable error, with respect to the availability of such a test, is of little import given that he has accepted that all the relevant witnesses had never heard of such a test. In any event, the finding that there was “no readily available test” was one which was able to be inferred from the evidence provided to the Commission. 
Ground 3 - failure to give weight to the direction in the Drug Management Code of Practice
[28]	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.” 
[29]	The ground of appeal here is that the Commission failed to give weight to the possibility of such a direction.
[30]	It was put to the Deputy President by the appellant that the QAS should have adopted a rehabilitative approach given the respondent’s size, resources, knowledge, facilities and experience dealing with mental and drug related illnesses. It was put that this should have occurred given that the respondent had been persuaded that Mr Costello had self-administered methoxyflurane.
[31]	At [159], the Deputy President said:
“The primary consideration though, in my opinion, is the fact that the Respondent found, on the balance of probabilities, that Mr Costello used methoxyflurane while on duty, against a background where he denied (and continued to deny) that he had done so. If Mr Costello had admitted its use and explained the circumstances which led him to take that action, then the outcome (as Mr Emery indicated) might have been much different. Unfortunately, that is not what happened.”
[32]	Mr Costello argues that this finding erroneously presumes that a rehabilitative approach was not open to be taken by the QAS in the absence of some admission of guilt. 
[33]	This 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.
Conclusion
[34]	The appellant has succeeded in two of the three grounds advanced by him and the appeal is allowed. The appellant seeks an order to the effect that the matter be remitted for determination and that it be determined upon the basis of the evidence and submissions already before the Commission. I will hear the parties further on that.