Exit Distraction Free Reading Mode
- Unreported Judgment
Costello v State of Queensland (Department of Health - Queensland Ambulance Service) (No. 2) QIRC 94
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Costello v State of Queensland (Department of Health - Queensland Ambulance Service) (No. 2)  QIRC 094
State of Queensland (Department of Health - Queensland Ambulance Service)
Application for Reinstatement
25 June 2019
17 March 2017
9, 10, 11, 12 and 13 October 2017
27 November 2017 - Submissions of Applicant and Respondent
8 December 2017 - Reply submissions of Applicant
INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - TERMINATION OF EMPLOYMENT - whether termination harsh, unjust or reasonable - where dismissal followed investigation and show cause process - where allegation Applicant misappropriated methoxyflurane whilst on duty - where allegation Applicant self-medicated with methoxyflurane whilst on duty - where allegation applicant not documented opioid discards according to Drug Management Code of Practice - where Applicant claims distressed about his daughter’s medical condition - whether Applicant suffered a panic attack - whether symptoms exhibited were of a panic attack or methoxyflurane use - witness evidence - burden of proof - balance of probabilities - Briginshaw standard applied - witness credibility - circumstantial evidence - high probability applicant used methoxyflurane - application dismissed.
Industrial Relations Act 1999, s 73(2), s 74, s 75(1)
Industrial Relations Act 2016, s 1023
Blows v Townsville City Council  QIRC 66
Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336
Dutt v Central Coast Area Health Service  NSWADT 133
Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914
Wady v YMCA Canberra  IRCA 568
Wang v Crestell Industries Pty Ltd (1997) 73 IR 454
Mr E. Shorten, Counsel instructed by Ms L. Napper of Cube Workplace Solutions, for the Applicant.
Mr J. W. Merrell, Counsel instructed by Ms L. Koger of Crown Law, for the Respondent.
- On 31 October 2016 Mr Jay Costello was dismissed from his role as an Advanced Care Paramedic with the Queensland Ambulance Service (QAS) by correspondence from Mr Craig Emery, Deputy Commissioner, State Local Ambulance Service Network (LASN) Operations. His dismissal followed an investigation and subsequent show cause process in relation to an event which occurred at the Robina Hospital during the early evening of Thursday 2 June 2016. Mr Costello has applied to be reinstated to his former position on the basis that his termination was harsh, unjust and unreasonable.
- On 2 June 2016 Mr Costello was rostered to work a shift operating out of the Southport Ambulance Station commencing at 1.00 pm and ending at 11.00 pm. Other officers working with him on that shift were Mr Patrick Hoey, who commenced employment with QAS as a Graduate Paramedic in January 2016, and Ms Erin Wacker, a Student Paramedic. This was the first time Mr Costello had worked with either officer, although Mr Hoey and Ms Wacker had worked together over the previous two days.
- In the late afternoon/early evening they all attended an elderly lady who had fallen over in her backyard and had dislocated, or fractured, her shoulder. She was given a Penthrox methoxyflurane inhaler with 3 ml of methoxyflurane to help her relieve her pain. Because she had soiled herself she was moved to her house to be cleaned up before being put on a stretcher and placed in the ambulance.
- Before the ambulance left the premises a further 3 ml of methoxyflurane was loaded into the inhaler to assist the patient with her pain management while a number of unsuccessful attempts were made by Ms Wacker and Mr Costello to insert a canula to allow morphine to be administered intravenously. Mr Hoey was ultimately successful in cannulating the patient. In accordance with the usual practice of rotation from job to job, Mr Hoey drove the ambulance while Mr Costello and Ms Wacker sat in the back of the ambulance. During the trip 5 ml of morphine was administered to the patient in two x 2.5 ml doses.
- After arriving at Robina Hospital the three officers and their patient were ramped while they waited their turn to be processed by a nurse at the triage desk and admitted to the Emergency Ward of the Hospital. Some 22 minutes later (based on time elapsed as measured by CCTV coverage) Mr Costello excused himself (to Mr Hoey) to go to the bathroom.
- What followed after that is recorded in contemporaneous notes prepared later that evening by Mr Hoey, a Mr Troy Bakens - Registered Nurse employed at the Hospital, and another Ambulance Officer, Ms Susannah Garrett, respectively.
Contemporaneous note of Mr Hoey
- From:Patrick Hoey
Sent:Thursday, 2 June 2016 10.58 PM
To:Terence Dickson (Acting Operations Supervisor)
Subject:Patrick Hoey - Description of events 02/06/16 - Case no 07663655
The following is a recount of the events which occurred during and after case 07663655.
- Officer Patrick Hoey and Officer Jay Costello were working together on a 1300-2300 shift on the 02/06/16.
- Throughout the day officer Jay Costello had disclosed to officer Patrick Hoey that his daughter was under investigation for a rare disease and nothing more was said of it.
- Officer Patrick Hoey and Jay Costello, along with a university student had been dispatched to an 86YOF with a dislocated shoulder, query fracture.
- On arrival at Hospital, during triage the patient was given the remaining 5 ml morphine in 2.5 ml increments 5 minutes apart as she was still in pain.
- Soon after Officer Costello and Erin Wacker were triaged, Officer Jay Costello stated to Officer Patrick Hoey that he was going to the bathroom.
- Approximately 10 minutes passed and a nurse (Mr Bakens - see contemporaneous note below) came and asked Officer Patrick Hoey if he was working with Jay.
- The nurse stated that he had witnessed Jay stumble out of the toilet near short stay at Robina Hospital and had almost fallen over.
- The nurse stated Jay had bloodshot eyes, seemed quite upset and "just off".
- The nurse stated that when approached to see if he was ok Officer Costello stated he had "just had a vasovagal episode and he was fine".
- A female paramedic from Burleigh (Advanced Care Paramedic Susannah Garrett) had overheard this conversation between the nurse and Officer Patrick Hoey.
- The female paramedic has assisted Officer Patrick Hoey in searching for Officer Jay Costello as both officers had concerns based on what the nurse had said.
- Officer Patrick Hoey and the Burleigh officer were unable to locate Officer Costello in the toilet where the nurse had stated he was seen.
- Officer Hoey and the Burleigh officer proceeded to knock on a locked toilet door at the far end of acute in Robina Hospital.
- As there was no answer, Officer Hoey unlocked the toilet door and found Officer Costello sitting on the toilet.
- Officer Hoey and the Burleigh officer observed Officer Costello sitting on the toilet with his pants on, elbows on his thighs and had his head facing down.
- The toilet seat was down and initially Officer Costello did not notice the other two officers standing at the door, there was the distinct smell of Methoxyflurane surrounding Officer Costello.
- Officer Costello had a Penthrox whistle in his hand, with the wrist strap around his wrist, he appeared glassy eyed and emotional as well as having bloodshot eyes.
- Officer Hoey reassured and then questioned Officer Costello on what he was doing, from the best of Officer Hoey's recollection, he stated he just needed some time and will be right in a few minutes, however seemed quite slow and confused with his answers.
- Officer Hoey took the Penthrox whistle from Officer Costello and held onto it until it was disposed of in the bin near the write up room.
- Officer Costello came out of the toilet shortly after and approached Officer Hoey and the Burleigh officer.
- Officer Hoey told Officer Costello that he should not be working in this head space, and instructed the Burleigh officer to take him out to the ambulance bay for some fresh air.
- Officer Hoey then went and disclosed the events which had occurred to the A/Operations Supervisor Terence Dickson.
- Officer Costello and Erin Wacker completed the paperwork, Officer Hoey was unable to check or sign the paperwork before it was completed.
- Officer Costello seemed quite upset and emotional and had agreed that he was not the (sic) in the right frame of mind to be treating patients.
- Officer Hoey returned to 601501 to make sure the student was ok and helped clean the truck as the A/OS determined the best plan of action given the circumstances.
- Officer Hoey and Erin Wacker returned to Southport station shortly after where this document was composed.
This is a recollection of events to the best of my memory, if there are any questions, please do not hesitate to contact me at any time convenient to yourself.
Contemporaneous note of Mr Bakens
- From:Troy Bakens
Sent:Thursday, 2 June 2016 8:50 PM
To:Brett Sellars (Clinical Nurse Consultant)
Subject:Incident - Thursday 2/6/16
As per our discussion.
- The QAS officer slowly exited the toilet with a very unsteady gait.
- The QAS officer had to hold himself up with both hands on each side of the wall, his eyes appeared red, bloodshot and glazed.
- His speech appeared slow and slightly incoherent at times.
- I repeatedly informed him that he did not look ok and that he should get looked over.
- The QAS officer informed me that he was ok and exited the locker room.
- Several minutes passed and I exited the locker room and went to triage to locate the QAS officer to double check that he was ok.
- After asking several QAS officers in the vicinity, I located the QAS officer's buddy and asked if his partner was ok. He informed me he is in the bathroom and then I informed him what had happened and he wasn't in the bathroom.
- We went back to the bathroom to see if the QAS officer may have returned there, but he was not there.
- After this, I then returned to my duties.
Contemporaneous note of Ms Garrett
- From:Susannah Garrett
Sent:Thursday, 2 June 2016 8.05 PM
To:Terence Dickson (Acting Operations Supervisor)
Cc:Paul Young (QAS Gold Coast)
To whom it may concern,
I was on 7am-7pm shift out of Burleigh Heads Station today. We were at Robina Hospital this evening at approx. 1830 when I went to the staff bathroom towards the right of the emergency area. As I was waiting to use the toilet a GCHR Nurse came out of the toilet looking a little shocked and concerned and then asked me if I was Jay's partner, I said no, he didn't say anything else and left. When I went back to the triage area I overheard him asking Patrick (GPP) if Jay was his partner, he answered yes, the RN then explained that he just saw him come out of a toilet looking like he was going to pass out, with bloodshot eyes. Patrick and I both became concerned so we started looking for Jay throughout the emergency department and checking all the toilets. Patrick eventually found him, after a few minutes, in the toilets at the back of the emergency department (? Pt toilets). I was nearby and heard him knocking on the toilet door and asking Jay if he was alright, Patrick opened the door slightly as I came over and I saw Jay sitting on the toilet, leaning forward, elbows on knees, hands together holding a Penthrox/Methoxyflurane whistle. The room smelt strongly of methoxyflurane, I did not see him put the whistle to his mouth, he did appear heavily under the influence. Jay repeated to Patrick that he did not use it, he's just really stressed at the moment in regard to his daughter. Patrick and I stayed with him, talking with him and explaining that he needs to go home, Patrick said to me he will speak to Terence (OS) if I can take Jay outside for some fresh air. I understood that Terence was aware of the incident prior to leaving the Hospital.
I requested to Comms for the OS to call me on the way back to station to confirm he knew about the incident and to ensure the Officer had been taken off road immediately.
Please contact me if you have any further requests.
ACP2 Burleigh Heads Station
- As recorded above, Mr Terence Dickson, Acting Operations Supervisor - QAS, was made aware of the fact that Mr Costello had been found in a toilet cubicle with a methoxyflurane whistle in his hand by Mr Hoey. Mr Dickson's actions in response to that report are set out in his own contemporaneous note, prepared early the following morning.
Contemporaneous note of Mr Dickson
- From:Terence Dickson
Sent:Friday, 3 June 2016 2:19 AM
To:Paul Young (QAS Gold Cost)
This report are (sic) the events in brief of what occurred at Gold Coast Robina Hospital A&E dept. on 2/6/2016 regarding ACP11 Jay Costello whilst on incident 7663655:
- I arrived at Robina A/E at approximately 1905 hrs with 607573.
- Entered A/E to ascertain the MEDAI situation.
- Searched for various crews to confirm POST whilst performing this function Patrick Hoey approached me looking visibly distressed and urgently needed to talk to me privately.
- Approximately 1910 hrs we moved to a secluded area to disclose that he had witnessed his crew mate in a toilet with a Penthrox Whistle in his hand and that his crew mate seemed to had (sic) bloodshot eyes and slurring his words.
- I immediately called Communications Centre to place Ambulance 6501 Out of Service until this event could be confirmed due to safety reasons, confidentiality was kept throughout this process.
- I then called SOS (Senior Operations Supervisor) Young and explained that I did not have all facts but the matter was deemed serious and needed further investigation
- I then located the Officer Jay Costello and Patrick Hoey and used the privacy of the write up room to confirm the event
- Officer Costello disclosed that he was under a lot of stress as he had received bad news yesterday about his child's medical condition.
- I offered support through Priority One which he refused.
- I then questioned him about the report from Patrick Hoey that he had been discovered in a toilet with a Methoxyflurane whistle in his hand with cord around wrist.
- Officer Jay Costello denied that he had used the whistle and he explained he had found this whistle in his pocket whilst having a moment on toilet trying to de-stress over his child's news.
- Officer Costello informed me that he had had a "vaso vagal attack on standing" from the toilet.
- Whilst interviewing Officer Jay Costello I noticed he seemed vague, slurred his speech, bloodshot eyes, unsteady gait and very defensive over the use of drugs, when I maintained I was concerned about his welfare over his stress due to his child's condition primarily and the fact he was unable to effectively operate as a clinician due to his emotional state and I had not accused him of misappropriating any drug.
- Jay Costello had a distinct smell of Methoxyflurane around him and on his breath whilst interviewing him.
- I then received a page to contact Ambulance 6536 urgently, I excused myself from Jay. Patrick informed me he would stay (sic) Jay to keep him company and to assure his welfare.
- Upon calling 6536 it was reported by Susan Garrett that she too had witnessed Jay Costello on the toilet with his uniform pants up, toilet seat down, elbows on knees with his hands together and a Methoxyflurane whistle in his hands.
- Susan Garrett further reported that there was a very strong smell of Methoxyflurane in the toilet area and Jay was red eyed and slurring his words.
- I instructed Susan Garrett to keep this information confidential and to report these events into an email and send to me as soon as possible.
- Upon tracking the course of events I realised there had been a RN witness who originally found Jay in the staff toilets, I located this RN and confidentially and informally interviewed the RN, Troy, of the course of events and then realised where Jay had been located by Susan and Patrick was a different toilet area to where the RN had originally found Jay.
- At approximately 1932 hrs due to the suspicious nature of the change of toilet locations and the reports of three individuals, one non QAS but QHealth, what they had witnessed Officer Jay Costello doing in the toilet at Gold Coast Robina Hospital, I called SOS Young to confirm that there had been a possible Misappropriation of schedule drug/s and I was also very concerned over the welfare of the Officer who had now become very emotional.
- I confidentially consulted with CNC Brett at Robina, as one of his staff members had been a possible witness to a possible misappropriation of a class drug and needed this staff member to give a statement of what he had witnessed and Brett was in agreement and offered the CCTV footage of both toilet areas and would release this on receiving an email from a senior ranked officer e.g. EMO. This information was passed on to SOS Young. I stressed the urgency and the confidentiality of this matter to Brett whom was in agreement.
- In consultation with SOS Young I was instructed to audit 6501 drug kit to ascertain the correct amount of drugs were present and found 2xMorphine and 2xMethoxyflurane were missing but accounted for by patient administration according to Patrick Hoey and eARF.
- At approximately 2035 hrs I was then instructed to transport Jay Costello to Mudgeeraba station with 607573, for SOS Young to consult with officer.
- On arrival I was instructed by SOS Young to transport Jay Costello back to Robina A/E for medical assessment, which I did and on arrival I handed the welfare of Jay over to SOS Young and left for Southport to catch up with Patrick Hoey who had been visibly distressed by the incident he had witnessed.
- On arrival at Southport station I instructed Patrick to report the events in an email to myself and SOS Young. I again instructed Patrick to keep this incident confidential and to use a computer in the room rather than general desk computer at Southport station.
- At this point I received a call from Rachel Latimer (Acting Superintendent - QAS) to talk to Patrick Hoey, thereafter I was instructed to have a general informal educational but nil specific conversation with the observer student to ascertain if there was (sic) any issues with the patient treatment she could perhaps give witness to.
- Student Observer Erin Wacker spoke openly about the patient treatment and all seemed in order except after she disclosed that she was very concerned about the emotional wellbeing of officer Costello due to the bad news he had received recently, but he had acted oddly towards the end of the transport of the patient (incident 7663655) as he had been holding the whistle for the patient as the patient had ?# of shoulder, Patrick was attempting to cannulate patient so Jay had held the Methoxyflurane whistle in patient's mouth whilst the patient was cannulated and Morphine administration took place. Jay then took possession of the whistle and he sat behind the patient and was out of sight behind the semi recumbent patient in transit. On arrival at the Hospital the student reports that Jay was red eyed and was acting strangely but did not find this abnormal as she assumed he had been crying due to the news he had received recently.
- Erin Wacker did not give any indication she suspected Jay of any misconduct and neither was this discussed with her. Erin showed nil inclination that there was any issue other than the emotional welfare of Officer Costello.
- I then proceeded to audit both accessible drug safes at Southport Station and found nil apparent discrepancies and reported this immediately to SOS Young, witnessed by Patrick Hoey.
- I engaged in informal counselling with Patrick Hoey, as he had been visibly distressed earlier when he reported this incident to myself and wanted to reassure him that he had acted as he should have and after he assured me his welfare was in order he terminated his shift at approximately 0000 hrs.
- Comms informed of Patrick Hoey shift extension and I confirmed the Toughbook had been synchronised as per SOS Young instructions.
- At approximately 0010 hrs 607573 returned to Southport where this report was generated.
The above is the course of events reported to the best of my recollection and knowledge at the time of this report been (sic) generated on the 3/6/2016 from Southport Operations Office.
Acting Operations Supervisor
- After returning to Robina Hospital, (see ninth from last dot point immediately above), Mr Dickson handed over the care of Mr Costello to Mr Young. He, in turn, arranged for Mr Costello to be admitted to the Hospital overnight for observation and assessment.
- On Friday 3 June 2016, Mr Emery was briefed about the events of the previous evening by Mr John Hammond, Assistant Commissioner, Gold Coast LASN. On the basis there appeared to be enough preliminary evidence to suggest Mr Costello may be liable to disciplinary action, Mr Emery took the decision that it was appropriate to suspend him while further information was gathered about the whole matter.
- To that end, Mr Emery arranged for correspondence to be prepared to Mr Costello, which was hand delivered that same day, advising him of his suspension (with pay) in accordance with s 18M of the Ambulance Service Act 1991 (the Ambulance Act). Mr Costello was also informed that Mr Hammond had been delegated to arrange for a formal investigation to be undertaken in connection with the events of the previous evening and that he would be contacted by the appointed investigator in due course.
- On 6 June 2016, Mr Patrick Berry, an Inspector and Senior Operations Supervisor, Gold Coast LASN, was appointed by Mr Hammond as the investigator in relation to the incident. The Terms of Reference of the investigation were as follows:
- Review the contemporaneous reports prepared by Officer Patrick Hoey and Officer Susannah Garrett who were present at the Hospital at the time of the alleged incident;
- Interview any available witnesses including Nurse Troy Bakens and University Student Ms Erin Wacker;
- Interview any other identified witnesses, if required;
- Secure copies of any CCTV footage available from the Gold Coast Hospital. If footage is available and relevant, then this material should be included in the determinations for this matter, including providing the subject officer with an opportunity to view;
- Interview the subject officer and seek his response regarding the information gathered in relation to this matter;
- Ascertain facts in relation to the matter;
- Examination of the allegation;
- Consider all pertinent evidence;
- Analysis of evidence in accordance with all relevant laws, the Code of Conduct for the Queensland Public Service, QAS policies & procedures; and
- Any other relevant issues and circumstances relevant to this case;
- Make available applicable supporting documents;
- Outline any discrepancies and/or breaches of relevant QAS Policies and Procedures; and
- Outline discrepancies and/or breaches of relevant laws and the Queensland Public Service Code of Conduct.
Should any new or changed information or alleged employee misconduct be identified, that falls outside this Terms of Reference, the investigator should contact Ms Kerrie Pereira, Principal Advisor, Employee Relations on 3635 3089 immediately to facilitate a change/reassessment and/or extension to the Terms of Reference.
Any systemic issues that are identified during the course of the investigation should be clearly detailed in the Investigation Report for consideration by the decision maker.
Interviews with witnesses
- In the course of his investigation, Mr Berry interviewed the following persons on the dates shown, with each interview recorded and transcribed:
- 14 June 2016 - Mr Dickson;
- 20 June 2016 - Mr Hoey
- 23 June 2016 - Ms Garrett
- 25 June 2016 - Mr Young
- 28 June 2016 - Ms Wacker.
Mr Dickson's interview
- In the course of his interview, Mr Dickson provided additional information, as well as some clarification, in relation to matters recorded in his contemporaneous note (above);
- when he was speaking to Mr Costello in the write up room the latter was slurring his words, his eyes were bloodshot and "he looked a very broken person";
- he (Dickson) put that down to the news Mr Costello had received about his daughter's medical condition;
- when talking about his daughter's medical condition Mr Costello was quite emotional and appeared to be very depressed;
- Mr Costello told him that he had disclosed to his crew mates that his child had been diagnosed with a serious medical condition and that he had also been emotional during the day in connection with the news he had received;
- during their initial discussion at Robina Hospital, Mr Costello seemed to be slurring his words. In the course of the trip to Mudgeeraba to see Mr Young, some of his words were still slurred, but not as pronounced as in the initial contact;
- when Mr Costello exited the vehicle at Mudgeeraba he seemed to be battling with his balance and held on to a fence to steady himself;
- as part of the explanation he gave to Mr Costello for taking him off the road, he told him (Costello) that he had blood shoot eyes, he had an impaired gait, he was slurring his words and he had a strong smell of methoxyflurane on him. Mr Costello responded by saying that he always had red eyes because of a medical condition and that the methoxyflurane smell was on him because he had put the Penthrox whistle in his pocket;
- when he asked Mr Costello why he had the methoxyflurane whistle in his hand when the door of the toilet was opened, Mr Costello responded by saying that he had "all of a sudden found it in his pocket and he had … taken it out to work out what was in his pocket when Patrick opened the door …";
- he took it upon himself to approach the RN (Mr Bakens) who had originally found Mr Costello;
- they walked to the toilets and Mr Bakens explained that when he found Mr Costello he was unsteady on his feet, slurring his words and there was a strong clinical smell present which wasn't normal for that toilet area; and
- when he spoke to Ms Wacker she mentioned that Mr Costello had been really emotional and she was concerned about his welfare.
Mr Hoey's interview
- During his interview with Mr Berry, Mr Hoey said:
- he did not notice anything in particular about Mr Costello's demeanour during the shift. As far as he was concerned everything was normal;
- at one stage during the shift, maybe midway, Mr Costello mentioned that his daughter was under investigation for a disease which had the potential to impact her intellectual abilities later in life. "It was only mentioned once and nothing else was really said of it";
- while he was in the triage area, after Mr Costello had gone to the toilet, a nurse came up to him and asked if he was working with Jay;
- the nurse said he had just seen Jay come out of the bathroom and "he's sort of stumbled and had to catch himself against the wall";
- the nurse said that Jay told him that he had just had a vasovagal episode and he would be fine. However, the nurse said that he was concerned about Jay.
- he and a female officer, who overheard the conversation, went with the nurse to the toilets where Mr Costello was seen, but could not find him;
- after checking several other toilets he went to the end of a hall where there were two toilets. The one on the right was empty and the one on the left was locked;
- he knocked on the door but did not get any response. He waited a few seconds and unlocked that door from the outside;
- Mr Costello was sitting on the toilet with his elbows on his knees, facing down. He had a Penthrox methoxyflurane whistle in his hand. The room smelled as if someone had been using it, but he did not see Mr Costello use the whistle;
- it took Mr Costello a few seconds to realise he was standing at the door then he looked up and looked quite shocked. He asked Mr Costello what he was doing. Mr Costello responded by saying that he just needed a few minutes and he would be ok. He took the whistle off Mr Costello and closed the door;
- outside the toilet he spoke to the female officer, who had seen everything, about what they should do. She suggested that he talk to Mr Dickson, the Operations Supervisor;
- at that point Mr Costello came out of the toilet and asked what they were talking about;
- he asked the female officer to take Mr Costello outside to get some fresh air and free his head because he was not in the right space to be working. He also told Mr Costello that he should go home and he was not prepared to work with him for the rest of the night;
- after that he went and told Mr Dickson what he had seen;
- because he was a bit shaken up, he threw the Penthrox in the wrong bin by accident;
- when Mr Costello came out of the toilet "he looked sort of beaten, like he was exhausted. He was quite spacy, he didn't, he just didn't really strike me as normal. His eyes were quite bloodshot. It looked as if he had been crying or had been quite emotional. He was slow with his answers and a just bit confused in general". He was steady on his feet when he came out of the toilet; and
- while he was not really looking, he had not seen anything that sent any alarm bells off about Mr Costello's demeanour prior to going to the bathroom "Once I saw him in the bathroom, it was a different person".
Ms Garrett's interview
- In her interview with Mr Berry, Ms Garrett told him:
- she had a few words with Mr Costello at the triage desk, because she knew him from Brisbane a few years ago, and found out that he had been transferred to the Gold Coast;
- he came across "as a normal general appearance", was "presenting as a coherent GCS15" and had just finished his handover to the triage nurse;
- after she was triaged she went to the toilets. As she was waiting to use them, a male nurse exited the toilets looking a little concerned or worried, and asked her if she was Jay's partner. When she replied that she was not the nurse walked off;
- after she left the bathroom and came back to the triage area she noticed the same male nurse talking to Mr Hoey. She heard the nurse say that he was concerned because he had seen Jay come out of the toilet, with bloodshot eyes, and looked like he was almost going to collapse. Mr Hoey and she then went to start to look for Mr Costello;
- after looking around the Emergency Department for a few minutes they went to the back of the Hospital to look further. She noticed Mr Hoey opening one of the toilet doors saying something to the effect "Hey Jay, what are you doing?";
- she walked towards the door and Mr Hoey pushed the door open a little bit. "Jay was sitting on the toilet leaning down, elbows on his knees, leaning forward looking quite worse for wear … he had a Penthrox whistle in his hand. He was either holding it or holding the string and Patrick was just saying 'what are you doing mate, what are you doing?'";
- Mr Costello denied that he'd had any of the methoxyflurane. "He repeatedly denied, denied, and seemed heavily under the influence at the time with his speech, slurred speech, repetition, bizarre behaviour … the room smelled very strongly of methoxyflurane. I didn't see him inhale the whistle, I only saw him holding it. Patrick took it off him …";
- she and Mr Hoey talked about what they should do about what they had seen. It was agreed that Mr Hoey would speak to Mr Dickson and she would take Mr Costello outside where the ambulance was parked while Mr Hoey went to speak to Mr Dickson; and
- whilst outside Mr Costello expressed concern about his daughter and showed her a type of rash he googled on his phone. He seemed quite obsessed just looking through the phone and mentioned that he had googled this a couple of days previously.
Mr Young's interview
- Mr Young gave Mr Berry a detailed account of his recollections of the evening of 2 June 2016, including a number of telephone calls from Mr Dickson and his own contact with Ms Latimer. He also said:
- when he met Mr Costello at the Mudgeeraba station his general appearance was that he was unsteady on his feet and his speech was not fast reacting, "as if he was under the influence of something";
- in his professional opinion, Mr Costello did not seem to be under the influence of methoxyflurane. Given that he had been with Mr Dickson for quite a while, if he had taken methoxyflurane, it would have been out of his system by then; and
- in his opinion, Mr Costello was "carrying more than methoxyflurane on board".
Ms Wacker's interview
- Ms Wacker provided the following information to Mr Berry during the course of her interview:
- she did not notice anything extraordinary about Mr Costello's appearance when they first commenced their shift at 1.00 pm, or at any other stage;
- while the other officers cannulated the patient in the ambulance she held the methoxyflurane for the patient to use because she could not hold it herself as her injured arm was in a sling;
- on the way to the Hospital she administered 2 x 2.5 ml of morphine to the patient;
- she did not know what happened to the methoxyflurane whistle after the first dose of morphine was administered;
- while she and Mr Costello were dealing with the paperwork and waiting to be triaged at the Hospital they were talking normally and he was giving her pointers about the paperwork. In terms of his general appearance, he appeared "normal";
- while standing at the triage desk after Mr Costello went to the toilet, she witnessed a male registered nurse yelling out for Jay Costello;
- after Mr Hoey identified himself as Jay's partner, the nurse told Mr Hoey about what he had witnessed in the bathroom. He and another paramedic walked off with the registered nurse to find Mr Costello;
- five or ten minutes later they came back and Mr Costello looked really sad;
- a couple of hours after all this happened, during which time she sat in the ambulance, she witnessed Mr Costello on the phone talking to someone. He wasn't talking quickly, it wasn't slurred, he was just having a normal conversation with someone;
- she met Mr Costello on her first day of placement during which time he spoke to her about his brother-in-law - whom she knew from ACU - and showed her where his brother-in-law had practiced cannulating him the day before; and
- during the shift Mr Costello mentioned to Mr Hoey that he had taken annual leave the day before and his daughter might have a disability. However, he was positive about it, saying "but she's developing really well …".
- In addition to interviewing the persons mentioned in paragraph , Mr Berry conducted an audit and review of Mr Costello's drug administration records and patient records over the previous six months, with an indepth analysis of his electronic Ambulance Report Forms (eARF) records for the months of February, March and May 2016. The audit identified a number of issues of concern to Mr Berry, as follows:
- Mr Costello was the highest user of morphine in the State - administering 84 doses in excess of any other officer, including other Advanced Care Paramedics and Critical Care Paramedics;
- "an inordinate number" of eARF's completed by Officer Costello were not compliant with the QAS Drug Management Code of Practice;
- there were 58 occasions where discards of S 8 drugs (morphine and fentanyl) had not been recorded, with a number of these not being witnessed - as required by the Code of Practice; and
- although only located at Beenleigh Station for just over four months (January to 9 May 2016) in the six month period January to June 2016, before moving to Southport, Mr Costello's discard rate (66 occasions) for S 8 drugs was 37 more than the next highest officer at that station over the full six month period.
Interview with Mr Costello
- By letter dated 1 August 2016, Mr Hammond directed Mr Costello to attend an interview with Mr Berry, as the appointed investigator, at the Pimpama Ambulance Station on 4 August 2016 and to bring a support person if he so wished. The letter informed Mr Costello that the interview would provide him with an opportunity to respond to the following allegations:
It is alleged that on 2 June 2016 whilst on duty you misappropriated methoxyflurane.
It is alleged that on 2 June 2016 you self-medicated with methoxyflurane whilst on duty. Specifically it is alleged that you concealed the misappropriated methoxyflurane on your person and proceeded into a toilet cubicle at the Robina Hospital. You were subsequently observed by colleagues with the methoxyflurane whistle strapped around your wrist whilst sitting on a closed toilet.
It is alleged that you have not documented your opioid discards according to the Drug Management Code of Practice. Specifically, it was noted in the majority of cases audited, you have not completed the electronical Ambulance Report Form (eARF) appropriately - there is no record of discard volume and documented witness of discard.
- The letter also informed Mr Costello that he would be required to provide the investigator with an explanation as to the presence of two puncture wounds in his cubital fossa on his arm which had been noted by Hospital staff at Robina Hospital during his overnight admission on 2/3 June 2016.
- Although he conducted the other interviews by himself, Mr Berry attended his interview with Mr Costello in the company of Ms Karel Malcolm, Executive Officer, Clinical Quality Patient Safety Unit and Ms Natalie Schute, Senior QAS Pharmacist. Accompanying Mr Costello was Ms Efthimia Voulcaris from Devaney Investigations and Industrial Consulting. The interview, which was recorded and transcribed, went from 11.20 am until 1.29 pm, with a break between 12.16 pm and 12.50 pm to allow Mr Costello and his support person to view CCTV footage of the triage area on the evening of 2 June 2016.
- During the course of the interview, Mr Costello made the following comments:
- if a proper medical assessment had been undertaken during his Hospital admission, his innocence would have been established long ago;
- prior to leaving the 86 year old patient's residence a second dose of methoxyflurane was drawn up because he and the student were having difficulty cannulating the patient and she needed pain relief;
- after the canular was inserted by Mr Hoey, the student administered morphine on the way to the Hospital;
- the patient held on to the whistle all the way to the Hospital but dropped it, between the stretcher and the wall of the vehicle, just before they arrived at the Hospital;
- as he exited the vehicle he grabbed the whistle and put it into his right trouser pocket (paragraph 38 of transcript) for the patient to use if she needed it again (paragraph 548-549);
- after being ramped in the triage area for some time he went to the staff toilet. While in the toilet area he had his mind on his daughter and some spots on her body that were confirmed to be "café au lait spots" by the family's general practitioner the previous day;
- just prior to standing to leave the toilet cubicle he looked up images on his mobile phone to establish the possible outcomes of her condition. The images he viewed "weren't pretty". He had an overwhelming feeling of, what he could only put down to, shock;
- he received a massive fright that lasted for a long time and it took his legs away from him because the cubicle was small and he wanted to get out of there as he was feeling claustrophobic;
- he now knew that it was more likely than not that he had suffered a panic attack;
- a nurse came up to him and asked him if he was alright. He responded by putting on a brave face, saying that he was "just really stressed about my daughter" and "I just need to breathe it out";
- he started to go back to the triage area but could not bear to face anyone because he felt like he was going to cry. He headed to the back of the Hospital where he knew there were other toilets where he could sit down and "have a time out and just try and get myself together before going back and having to, you know, see any of my colleagues";
- the toilet area he entered had a wash basin in the corner, a shower (with a metal surround for a curtain to be drawn around) and a toilet. "It's probably about as big as this (interview) room … so there's quite a bit of space in there";
- when he sat down in the new toilet area he still felt claustrophobic. The Penthrox whistle was in his pocket and poking into his leg. "I just had to get it out". He pulled it out and held it in his right hand while taking big breaths;
- the door of the toilet opened and Mr Hoey walked in and asked "What's going on mate?". He responded by saying that he was really stressed out about his daughter;
- when Mr Hoey asked him about the whistle in his hand he assured him that he had not used it and handed it over when Mr Hoey asked him to;
- the puncture marks in his arm were the result of allowing his wife's younger brother, a paramedic student at ACU, to practice cannulation a day or so earlier prior to going on prac at Coolangatta Station;
- his comparatively high use of morphine could be explained by the fact that he always tried to help relieve his patients' pain, rather than to leave them wait until they were transported to Hospital;
- if a patient was sitting with a methoxyflurane whistle you could smell it. If they used it properly there is a stronger odour than if they were just holding it, but not as strong as if they blew through the whistle; and
- other paramedics would have similar observations concerning the smell of methoxyflurane when it was in use compared to when it was not in use.
- Mr Costello made a number of additional comments to Mr Berry, as follows:
- he believed he did not lock the second toilet when he entered it;
- the Penthrox whistle was in his hand but the whistle was not attached around his wrist. "At no stage was the whistle attached around my wrist";
- after he realised the Penthrox whistle was still in his pocket, while he was sitting on the seat, it was his intention to go back and show his partner and the student that he was discarding it;
- "At no stage did I inhale the said whistle";
- the CCTV footage did show some change in his behaviour after he came back from the toilets because he was upset. However, he was not unsteady on his feet. While he did put his hands on his head that was because he was upset about the deformities that his 8 month old child could have;
- his state of mind on the day could be exemplified by the fact that he spoke to the Acting OIC prior to starting work about the upsetting news he and his wife had been given by their GP the previous day, as well as the fact that he spoke to Mr Hoey about the same matter at the start of their shift; and
- he was particularly distressed after seeing the photos of his daughter's medical condition on his phone. However, it was not only that, it was also the learning difficulties associated with the medical condition.
- On or about 15 August 2016, Mr Berry finalised his Investigation Report - with the assistance of Ms Kerrie Pereira, Principal Advisor, Industrial Relations, QAS - and provided it to Mr Hammond. The report indicated that if the decision maker accepted the evidence and reasoning outlined within it then, on the balance of probabilities, each of the allegations was capable of substantiation. In particular, Mr Berry recorded the following conclusions in respect of the allegations:
Officer Costello has admitted that he placed the methoxyflurane inhaler in his cargo pants pocket of his uniform. He did not discard the methoxyflurane inhaler in line with the QAS Drug Management Code of Practice. Officer Costello had opportunity to ensure that the contaminated inhaler was appropriately discarded which was also supported by CCTV footage.
Based on the balance of probabilities, the investigator has determined that it is more likely than not that Officer Costello concealed possession of the methoxyflurane inhaler. Based on all the information available, the student's recollection of events is preferred over Officer Costello's version. Based on this information this allegation is capable of substantiation.
Based on all the evidence available, the investigator did not find Officer Costello's version of events probable. In all the circumstances, it is the opinion of the investigator that Officer Costello's version lacks credibility in comparison to ACP Hoey's and ACP Garrett's version of events.
The evidence of the two paramedics and a Registered Nurse all indicate Officer Costello presented in an altered state only after having excused himself to go to the toilet. Given their clinical expertise, their evidence regarding their observations as to Officer Costello's presentation provides the decision maker with strong evidence that it is more likely than not that Officer Costello self-administered methoxyflurane whilst on duty on 2 June 2016. Therefore, based on the balance of probabilities, this allegation is capable of substantiation.
Officer Costello's high S 8 drug administration and discard rates are of a concern, particularly in light of Officer Costello's failure to comply with his responsibilities as an Advanced Care Paramedic.
The management of S 8 drugs by paramedics is a critical aspect of the role and is governed by the legislation.
If the decision maker accepts the evidence and reasoning outlined within this report then, on the balance of probabilities, the allegation that Officer Costello failed to document his opioid discards according to the Drug Management Code of Practice is capable of substantiation. Specifically, it is noted in the majority of cases audited, Officer Costello has not completed the eARF appropriately, as there is no record of documented discard and witness.
First Show Cause Letter
- After reading and considering the Investigation Report and Attachments, Mr Hammond was reasonably satisfied that disciplinary action should be initiated against Mr Costello in relation to the three allegations. In making that decision, he indicated that he did not see anything in the report to indicate or raise a suspicion that the procedure undertaken by Mr Berry in investigating the allegations was not fair or transparent.
- Having reached his decision, Mr Hammond wrote to Mr Costello on 22 August 2016 inviting him to show cause as to why disciplinary action should not be taken against him in relation to the three allegations regarding his conduct. Mr Costello was provided with 14 days, from the date of the letter, to provide a response.
- To assist him to respond, Mr Costello was provided with a copy of Mr Berry's report - which included the text of the contemporaneous notes prepared by Mr Bakens, Mr Hoey and Ms Garrett - and transcripts of the interviews with the persons mentioned in paragraph , above. Copies of the Drug Management Code of Practice and a role description of an ACP were also attached.
Mr Costello's response
- On 29 August 2016 Mr Costello provided a detailed 10 page response to Mr Hammond. In the early paragraphs of his letter, Mr Costello drew Mr Hammond's attention to the fact the Show Cause letter informed him that the allegations against him were "serious" in nature which he took to mean that, if substantiated, the consequences may be serious and irreversible to his employment and career. As such he submitted that the degree of satisfaction required in determining whether the allegations are substantiated requires that the Bringinshaw v Briginshaw standard of proof is adopted. He also referred Mr Hammond to the case of Dutt v Central Coast Area Health Service  NSWADT 133 where it was held that an investigator, and decision maker, must look at the nature of each allegation and, if it would be reasonably foreseeable that there may be adverse consequences for the livelihood or reputation of the subject officer, then the application of the Briginshaw test is required.
- Mr Costello also noted while the report referred to "on the balance of probabilities" and "it was more likely than not", the investigator had made no reference in his report as to the application of the Briginshaw test. Mr Costello also submitted that the evidence referred to in the report was insufficient to meet the standard of proof required to establish any of the allegations against him.
- An analysis of the evidence relating to each of the allegations was then provided, which is summarised below:
- he was authorised to possess methoxyflurane whilst on duty under the Health (Drugs and Poisons) Regulation 1996 and by QAS, as defined in the Drug Therapy Protocol and by his authority to practice;
- the practice of carrying drugs, which have been partially used, in the pockets of the QAS uniform is one which is widely adopted by Paramedics. There is no QAS policy which prohibits that practice. The investigator failed to make enquiries about this practice, which is adopted by other paramedics for convenience. Permission was requested to contact other QAS paramedics, to obtain supporting statements about this practice, prior to a final decision being made in relation to the allegation;
- the dictionary definition of "misappropriating" is to take something dishonestly for one's own use. "I did not use the methoxyflurane, and none of the witnesses stated they saw me use it";
- "I would have discarded the methoxyflurane had I remembered it was in my pocket. However, I had forgotten that it was in my pocket. On 2 June 2016 I was distressed, anxious, stressed, panicking about a serious diagnosis relating to my daughter which I had only received the day before";
- as stated in the interview, his distress was raised with his OIC prior to the shift. However, the Investigator failed to interview the OIC to confirm that this conversation occurred;
- "One of the common and (medically accepted) symptoms of anxiety includes issues in relation to memory loss and a general ability to remember things. I forgot that the methoxyflurane was in my pocket when I went to the bathroom and I attribute my forgetfulness on that day to the anxiety and stress that I was suffering";
- page 23 of the QAS Drug Code of Practice refers to what an Officer should do if they find themselves accidentally in possession of drugs after they complete their shift. The fact that this is contemplated, even after a shift is finished, is "evidence" that it can occur while on shift;
- the investigator's analysis of the evidence states that there are conflicting recollections concerning the cessation of the patient's use of methoxyflurane. It was not open to the investigator to prefer another person's uncorroborated recollection of events over his own recollection of events, particularly in light of the seriousness of the allegation. The basis upon which the investigator attempted to justify his decision was that the other person's version is "more consistent with paramedic practice". However, the investigator did not outline what the "paramedic practice" actually is;
- the uncorroborated evidence of the student paramedic makes no mention of who removed the methoxyflurane from the patient or where it was secured. These are obvious and important factual questions which were not explored by the investigator. The evidence relating to this factual issue is directly relevant to his evidence about why the methoxyflurane was in his pocket;
- the investigator did not appear to have re-interviewed Ms Wacker to ask her about his explanation that the methoxyflurane fell between the stretcher and the wall of the vehicle. In light of the fact that there is no evidence from Ms Wacker about this point, there is nothing to contradict his account;
- "Procedural fairness is an integral element of a professional investigation, and a failure to put to a witness whether it is possible that my recollection of events occurred creates a miscarriage of procedural fairness"; and
- the allegation does not provide particularity as to how the methoxyflurane was misappropriated. As such, the responses provided above were his best guess as to what the allegations were in relation to.
- as previously stated on 2 June 2016 and in the interview with Mr Berry, "I did not use methoxyflurane and there are no witnesses who can say that they saw me use it. There is no direct evidence to contradict my explicit and direct evidence. The investigator relies upon circumstantial evidence which does not meet the standard of proof and the allegation is not capable of substantiation, particularly in light of the seriousness of the allegation";
- the QAS Drug and Management Code of Practice requires that in suspected cases of misappropriation, all relevant items are to be retained and submitted for analysis. "If the Code of Practice had been followed, an analysis would have revealed that my saliva was not on the methoxyflurane inhaler";
- after being admitted to Hospital on the evening of 2 June 2016 he gave permission for QAS to access his medical records because he had nothing to hide. If he knew he was under suspicion he would have requested an appropriate drug test to be undertaken. At no time has QAS arranged for an appropriate medical assessment;
- as stated in the interview, "I did not have the methoxyflurane around my wrist and in this respect there is an inconsistency in the evidence of Officers Hoey and Garrett", respectively. Officer Garrett (in her written statement and her interview) supports his evidence that he did not have the strap around his wrist and that he was holding it. It is not open to the investigator to determine that the allegation (as framed in the Show Cause Letter) was capable of substantiation, because the evidence of Officer Garrett and myself is to the effect that the whistle was not strapped around my wrist;
- the investigator seems to have heavily weighted the witness observations regarding the odour of methoxyflurane in the toilet area. An inhaler has an odour for a period after it has been used by a patient. The strength of the odour and the length of time that the odour remains depends on the size of the space (the smaller the space, the stronger odour, for example: in an Ambulance vehicle or confined space like a toilet) and other subjective factors such as ventilation of the area and the witnesses' olfaction. It is not unusual that the methoxyflurane inhaler would have had an odour as it had very recently been used by the patient;
- "The witnesses' observations are circumstantial, subjective in nature and cannot be measured";
- all of the observations of the witnesses are consistent with the side effects of the panic attack which he suffered while in the emergency department and are attributable to the stress which he was under in relation to his daughter's diagnosis. The observation of Nurse Bakens, as relayed to Officer Hoey, is consistent with how he felt after the onset of the panic attack and anxiety episode;
- the investigator failed to mention, consider, or include in his analysis of the evidence that he might have had a panic attack and how the physical side effects of such a panic attack might have impacted on his presentation on 2 June 2016. The exclusion of his evidence in this regard demonstrated bias on the part of the Investigator;
- "I excused myself to go to the toilet because I had become overwhelmed by anxiety and the panic attack. That is important factual evidence. In those circumstances it would be normal for there to be some changes in my presentation immediately after a panic attack.";
- it did not appear that the Investigator re‑interviewed the witnesses to ask them whether his physical presentation could have been the result of a panic attack;
- "Of the three witnesses, only one of them, Officer Garrett, stated that they believed the changes in my presentation was, in their opinion, as a result of my being 'under the influence'"; and
- the evidence is insufficient to meet the standard of proof required to substantiate the allegation against him in light of the seriousness of the allegation.
- Mr Costello acknowledged that his paperwork can at times be inefficient but noted that the use of the words "in the majority of cases" did not provide particularity about how many of the eARFs were inappropriately completed;
- while he had been informally spoken to by his OIC about improving his paperwork, he had not been directed to undergo any formal performance improvement plan or to receive further training;
- he had not seen the results of the audit of his administration of morphine or fentanyl and would need to see the evidence which supported the assumptions made in the Investigation Report so that he could respond;
- the ADAPT is defined in the Drug Management Code of Practice as "an online electronic program to provide real-time monitoring, reporting and notification of issues relating to drug management for onroad officers and managers". If that was the case, he did not understand how the real-time monitoring did not raise any issues in relation to drug discards prior to the audit and subsequent allegations against him;
- while he understood the management of S 8 drugs was important, and that his discard documentation required improvement, he had no doubt that with additional training and performance management his paperwork would exceed QAS's expectations;
- he would be able to better respond to his eARF records once he received further and better particulars and reviewed the eARFs; and
- because of the system being constantly upgraded or fixed, it was possible that certain data generated through the CAD/eARF's system for the purposes of the present matter was inaccurate. It was also possible that certain data traffic was corrupted during the synchronisation of each toughbook.
Findings and Proposed Penalty
- On 22 September 2016 after carefully considering all the material before him, including the detailed response from Mr Costello, Mr Hammond wrote to Mr Costello to advise him that he had found, on the balance of probabilities, that each of the allegations against him was substantiated. In so doing, Mr Hammond set out his reasons for reaching his ultimate conclusion that Mr Costello may be liable for disciple on the ground of misconduct.
- After outlining his reasons, Mr Hammond informed Mr Costello that he was giving serious consideration to recommending to the delegate (Mr Emery) the penalty of termination of employment. He also advised Mr Costello that, in accordance with the principles of natural justice, no final determination of the disciplinary action had been made, or would be made, until he had the opportunity to respond. In that respect Mr Costello was invited to show cause, within seven days, why the proposed disciplinary action should not be imposed. He was also invited to provide an alternative outcome if he considered the proposed disciplinary action was inappropriate.
Mr Costello's response to proposed penalty
- By way of correspondence dated 6 October 2016, Mr Costello responded to Mr Hammond. In the course of doing so he challenged a number of the reasons advanced by Mr Hammond as to why he found that each of the allegations had been substantiated, as follows:
- while he might have breached the clinical standards of hygiene in putting the methoxyflurane inhaler in his pocket, that was not a proper basis for not believing his version of events. He had never been dishonest in the course of his employment and there was no reason the breach could be relied upon to disprove his version of events;
- it appeared that the decision was based entirely on opinion, without any evidence which contradicted his own version of events;
- he had been honest in providing evidence and explanations and there was no reason why his explanations should not be considered to be credible;
- the CCTV footage did not show a change in his demeanour, other than him being upset. It did not show signs of him being unsteady on his feet;
- Mr Hammond failed to consider that he might have had a panic attack and how the physical side effects of such attack might impact his presentation;
- neither Officer Hoey, Officer Garrett nor the nurse had been asked whether his presentation could have been attributed to a panic attack;
- "all of the witness observations regarding my presentation were consistent with the presentation of having a panic attack and crying";
- he had not been provided with any documents regarding the audit, which he had requested a copy of. "It is procedurally unfair to rely upon evidence which I am not provided a copy of …"; and
- while it was possible that his eARFs were not properly completed, his discards were always recorded in the red drug book at the station and signed off by a partner or other qualified paramedic.
- In responding to the proposed penalty of termination of employment, Mr Costello told Mr Hammond:
- while he continued to deny the findings of fact made against him, he noted that Mr Hammond had made his decision concerning his (Costello's) alleged use of methoxyflurane;
- as such, consideration should have been given to referring him for drug rehabilitation in accordance with QAS's Drug Management Code of Practice;
- if Mr Hammond genuinely believed that he self-medicated methoxyflurane, then the termination of his employment, as opposed to rehabilitation back into the workforce, would be harsh, unjust and unreasonable;
- termination of employment is the most severe penalty under s 188(1) of the Ambulance Act, and an outcome which is excessive and disproportionate to his conduct for several reasons:
- industrial tribunals have frequently reinstated employees who have not been given a fair opportunity to improve their performance or conduct. While he had been informally spoken to about his paperwork, he had not received any formal training or been directed to enter into a performance improvement program;
- "The disciplinary sanction of termination of employment is typically reserved for the most serious cases of misconduct, such as where there have been deliberate departures from accepted standards of conduct or serious conduct that demonstrates an employee's unwillingness to be bound by the terms of their contract. I have not deliberately or intentionally been inefficient with my paperwork. I accept that I need to improve my paperwork but I have not deliberately failed to perform to the standard expected (by) QAS"; and
- QAS had not acted in accordance with the Public Service Commission Discipline Guideline which highlights that early intervention by managers to address employee performance is preferred over disciplinary processes.
- Finally, Mr Costello invited Mr Hammond to consider a number of other facts and circumstances which, it was argued, warranted some disciplinary outcome other than termination of employment. Included in these matters were the following:
- over the previous twelve months he (and his wife) struggled to deal with his daughter's medical issues, which resulted in many sleepless nights. This may have had some impact on his work performance in relation to his paperwork;
- "Given that you have stated that you believe that I have the capability to reach QAS's expectations regarding paperwork, I submit that I have the potential to modify my behaviour to consistently reach QAS's expectations regarding my paperwork";
- any decision to terminate his employment would mean that his career as a paramedic was permanently destroyed. This was to be compared to termination of employment in many other industries - where employees can move from one employer to another;
- he first gained employment with QAS through an Indigenous Program and had now worked for QAS for approximately ten years, first as a Transport Officer and finally as a paramedic;
- since graduation he had mentored many students and mentored students in his spare time. He also worked as a surf coach with North Stradbroke Surf School and was highly involved in indigenous school programs. He was a strong, positive, role model for indigenous youth and was proud of that responsibility;
- he had not previously received any formal reprimand from QAS, nor had any disciplinary action been taken against him. His overall work record, prior to the current allegations, was unblemished; and
- QAS was a large organisation which was able to facilitate training and supervised practice. There had been many occasions where QAS had arranged mentoring and supervised practice for other paramedics where those paramedics required improvement.
Referral to the decision maker - Mr Emery
- Mr Hammond responded to Mr Costello's correspondence on 11 October 2016. After acknowledging its receipt and indicating that he had had an opportunity to consider the submissions within it, he wrote:
SHOW CAUSE - PROPOSED TERMINATION OF EMPLOYMENT
I note that you have provided further information regarding the substantiated allegations and I have reviewed my decisions regarding the substantiated outcomes and do not believe you have provided me with any further information that has either not been considered previously or new information that impacts on my decision.
You have not been able to satisfactorily explain to me how you were located within a toilet cubicle with the strong odour of methoxyflurane present. I remain of the view that on the balance of probabilities, it is more likely than not that you were self-administering this drug.
In considering these matters, I preferred the evidence of the paramedics who witnessed your conduct and were working closely with you immediately prior to the incident. I do not believe your observed conduct and behaviour in all the circumstances was consistent with your version of events.
Finally in relation to allegation three, I am satisfied that you were provided with an opportunity at interview to review the eARFs that were discussed. I do not believe you requested a copy of these documents until after a decision has been made.
Therefore, I consider that the disciplinary finding I have made is appropriate. Further I believe that in all the circumstances a disciplinary response is warranted and that the substantiated behaviour constitutes misconduct. I remain of the view that termination of employment is an appropriate response.
Therefore I am referring this matter to the relevant delegated authority, Deputy Commissioner Craig Emery for his determination …
As I am referring this matter to Deputy Commissioner Emery, the determination as to the final penalty in this matter shall now be made by him. Once he has made his determination as to the penalty to be imposed, he shall advise you directly of his decision.
- In his affidavit, Mr Emery said that in accordance with QAS delegation requirements all LASN managers were required to refer disciplinary matters to him where he or she anticipates, on the balance of probabilities, that the matter may end in a finding that termination of employment is the appropriate penalty.
- It was in his capacity as the relevant delegate that he was briefed, around 11 October 2016, by Ms Pereira with documents in relation to the disciplinary process that had occurred in relation to Mr Costello. In addition, he received a copy of CCTV footage of the triage area and requested, and was provided with, a copy of Mr Costello's learning history. However, for reasons which are unknown, Mr Dickson's contemporaneous note (see above at paragraph ) was not referred to in Mr Berry's report or included in the material made available to Mr Emery.
- Mr Emery said it was his practice to set aside time to review and consider relevant material when considering disciplinary matters and, to that end, set aside time on 11, 13 and 21 October 2016. During that time he read the material provided to him very carefully.
- On 25 October 2016 he met separately with Ms Garrett and Mr Hoey to discuss the information they had provided as part of the investigation relating to Mr Costello. Ms Pereira was also present during these meetings and prepared a file note after each interview. In explaining his rationale for conducting these interviews, Mr Emery said:
I was conscious of the seriousness of the proposed penalty of termination of Officer Costello's employment, and considered that the onus was more heavily on me to ensure my decision was correct and proportionate to the conduct. In particular, I wanted to be sure that Officer Garrett and Officer Hoey were sure about the information they had provided.
- Each of the witnesses was asked to answer a number of questions, which included the following four enquiries:
- their recollections of the incident;
- their level of experience in administering methoxyflurane;
- whether the methoxyflurane whistle was around Mr Costello's wrist, as he had denied this; and
- whether Mr Costello's presentation might have been misunderstood, in that he stated he had suffered a panic attack and that was why he presented as he did.
- The file note prepared by Ms Pereira records the following responses to questions 3 and 4:
- Question 3:
- "SG said the methoxyflurane was swinging as he sat there";
- "PH is adamant that the methoxyflurane was hanging off his wrist (right)".
- Question 4:
- "SG did not believe JC had presented as someone who had experienced a panic attack. SG would expect a person to present more agitated, flighty - more adrenaline. Whereas JC presented quite differently";
- "PH disagreed (with JC's claim) - he remains of the view that JC had been using methoxyflurane (he did not witness JC inhale, but his presentation together with the strong odour). PH said that in his opinion typically a panic attack can present in a range of symptoms, however a panic attack is typically where a person is in a heightened state - hyper - whereas JC was spaced out";
- Mr Emery said that "having read the material very carefully and considering the matter, including evaluating all the material provided to me and facts presented to me", he agreed with Mr Hammond's recommendation that termination of Mr Costello's employment was the appropriate remedy.
- As such, on 31 October 2016, he finalised and signed a letter addressed to Mr Costello which informed him that he (Emery) had made the decision to terminate his employment and his reasons for having reached that decision. In advising Mr Costello of his termination, Mr Emery acknowledged the significance of the proposed action and its impact on him.
Burden of Proof
- Counsel for Mr Costello argued that because his dismissal was for alleged serious misconduct involving criminal activity, the Respondent bore the onus of proof. This meant it was up to the Respondent to establish, to the Commission's reasonable satisfaction, that Mr Costello was guilty of the alleged misconduct, The onus is set out in Briginshaw v Briginshaw (Briginshaw).
- While Counsel for QAS did not dispute that the evidential onus of proving that the dismissal was not harsh, unjust or unreasonable fell to the Respondent, he said the standard of proof in a case such as this was the civil standard - that is, on the balance of probabilities. However, where serious misconduct is alleged, it needs to be proven, and the evidence relied upon must be strong. The principle in Briginshaw did not go to the standard of proof but, rather, to the standard of evidence that is required. In Briginshaw, Dixon J relevantly stated:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of any allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences.
- Over the five days of this trial, evidence was given by the following persons (in order of appearance):
For the Applicant
- Mrs Amber Costello;
- Mr Jay Costello;
- Mr Adam Gett - Critical Care Paramedic;
- Dr Michael Robertson, PhD - Pharmacologist and Toxicologist.
For the Respondent
- Mr James Paul - Acting OIC, Southport Station, QAS, in June 2016;
- Mr Troy Bakens;
- Ms Erin Wacker;
- Mr Patrick Hoey;
- Ms Susannah Garrett;
- Mr Terence Dickson;
- Mr Patrick Berry;
- Mr John Hammond;
- Mr Craig Emery;
- Professor Edward Odgen, PSM - Private Consultant in Forensic Medicine and Deputy Director (Addiction and Forensic Medicine), Department of Psychopharmacology at Swinburne University; and
- Dr Daniel Bodnar, Acting Medical Director of QAS and Staff Specialist in the Emergency Department at the Royal Brisbane and Women's Hospital and the Lady Cilento Children's Hospital, respectively. (Note: Dr Bodnar was not required for cross‑examination).
Mr Costello's evidence
- Mr Costello's two affidavits contained some additional information not made available to Mr Berry or included in his two letters to Mr Hammond. This additional information included the following points:
- he and his wife had been informed by a doctor in late April that the café au lait spots on his daughter were likely to be a medical condition known as Neurofibromatosis Type 1 (NF 1). Following a visit to their normal GP on 1 June 2016, at which time about 20 café au lait spots were found on his daughter, his wife spoke to him that evening about his daughter's condition and said words to the effect:
- she was concerned that he did not understand the severity of the diagnosis;
- she was bearing all of the stress associated with monitoring their daughter; and
- she wanted him to do more research into NF 1 so that he could be better prepared and more supportive of her ongoing stress and concern;
- this was a stressful discussion, as a result of which he and his wife both became upset;
- he was still upset and stressed the next day (2 June 2016). This was why he spoke to the OIC and Mr Hoey at the start of the shift;
- shortly after the first dose of morphine was administered to her in the ambulance, the patient complained of more pain. As she had injured her shoulder, and had the IV in her other arm, he held the Penthrox inhaler to her mouth to assist her;
- when they were about a minute away from the Hospital the patient complained of more pain so he again held the inhaler to her mouth to assist her to administer the methoxyflurane. He then placed the inhaler on the pillow beside the patient's head;
- after arrival at the Hospital, Mr Hoey came to the back of the ambulance and began to pull out the patient's stretcher. He noticed that the Penthrox inhaler had fallen between the stretcher and the wall of the ambulance and picked it up and placed it in the right pocket of his pants. Ms Wacker then handed him the remaining morphine which he also placed in that pocket;
- in relation to Mr Bakens' observation that he was unsteady and staggered out of the bathroom, he might have appeared that way because he felt like he was going to pass out. His legs felt weak and he could not breathe;
- his eyes might also have appeared red, bloodshot and glazed because he had been crying and he suffered from Pterygium (a medical condition which presents as a pinkish tissue growth from the cornea of the eye towards the pupil);
- he did not think he was speaking slowly or incoherently to Mr Bakens, but knew he was struggling to get his words out as he did not want to cry in front of him;
- when he sat down on the second toilet he felt something jabbing into the side of his leg so he pulled the item out of his pocket. It was the Penthrox inhaler. Until that moment he had forgotten he had put it in his pocket. He held it in his right hand but did not put the strap around his wrist;
- he sat there taking deep breaths, trying to compose himself. However, he could not stop thinking about his daughter's condition and was feeling very stressed and overwhelmed;
- he was unaware of how much time passed while he was in the cubicle before Mr Hoey entered;
- in response to matters raised in Mr Hoey's affidavit he said he was not "unaware" of Mr Hoey's presence. He knew that someone was present but did not know who. He did not look up as he was very upset and felt as though he could not face anyone;
- he was also not "confused" or "slow to acknowledge what was going on around him". He was just upset and overwhelmed;
- if he seemed to be speaking slowly it was because he was upset and embarrassed as he did not want Mr Hoey to see him being emotional;
- in response to matters raised in Ms Garrett's affidavit, he said his speech was not slurred and he did not believe he was moving slowly. He was also unsure what she meant by "droopy eyelids", but said that his eyes might have been puffy and red and bloodshot because he suffered from Pterygium and because he had been crying;
- he was not speaking to her in an "inconsistent and confusing" way. Rather, he tried to explain to Ms Garrett why he was upset and attempted to show her the images he had looked at on his phone. However, she seemed disinterested and, after seeing the first image, told him "not to look at those" and walked away saying "I have to go";
- in responding to Mr Dickson's affidavit, he said he told Mr Dickson and Mr Hoey in the write up room that he was trying really hard not to cry. This was because he was not in control of his emotions, as he was upset;
- although he did start to climb into the back seat of the vehicle at Mudgeeraba, this was because he thought Mr Young was coming back to the Hospital with them. When he realised that Mr Young was not getting into the vehicle he moved to the front passenger seat;
- while Mr Dickson said he did not accuse him (Mr Costello) of using methoxyflurane, he actually did by stating words to the effect: "Mate, I don't know you from a bar of soap... an allegation has been made... your eyes are bloodshot, you're confused and I can smell it on you"; and
- if he appeared to have an unsteady gait as he exited the first set of toilets in front of Mr Bakens, this was because of his physical symptoms at the time which included:
- shortness of breath;
- heart beating fast;
- legs feeling weak; and
- a general feeling of shock and disbelief (at the images he had seen on his phone).
- In the course of his cross-examination, Mr Costello's answers generally reflected the account he had provided to Mr Berry, the points contained in his two letters to Mr Hammond and what he said in his two affidavits. However, there were several differences, including the following:
- he was mistaken when he told Mr Berry that the patient held the Penthrox whistle on the way to the Hospital. The patient did not have the whistle in her hand. It was beside her head. However, he "concluded", from reading the transcript of his interview with Mr Berry, that he was holding the whistle, putting it in the patient's mouth intermittently, while instructing her how to use it;
- he did not excuse himself to go to the toilet because he had become overwhelmed by anxiety and was having a panic attack as he told Mr Hammond in his first show cause letter. "… I was overwhelmed with anxiety but I didn't have a panic attack until I looked at the images … I was getting anxious is what I was saying";
- while he told Mr Berry that he could not bear to face anyone after he came out of the first toilet "because I felt like I was going to cry", he actually had cried because he had tears coming out of his eyes while in the toilet;
- the first occasion he mentioned he had been crying in the staff toilets (first toilets) was in his response to Mr Hammond's second show cause notice;
- the first time he tried to explain that the witnesses might have mistaken his Pterygium condition for bloodshot eyes was when he prepared his affidavit for the current proceedings;
- the second set of toilets that he went into was about 50 metres from the first set of toilets;
- he did not have to take the Penthrox whistle out of his pocket to stop it jabbing into his leg, "but I did.";
- although he "knew he was there" he did not acknowledge Mr Hoey's presence when the latter entered the toilet;
- Mr Hoey did not remove the inhaler from around his wrist, he handed the whistle to him;
- the photographs in attachment JC-2 to his affidavit (Exhibit 2) were not exactly the same as those he showed Ms Garrett on his phone while they were in the ambulance bay. However, what he showed her "were images of neurofibromatosis";
- Ms Garrett did not walk away from him while he was showing her the photographs on his phone as he stated in his affidavit. Nonetheless, he still felt that she was disinterested in what he was showing her;
- while he remembered denying to Mr Dickson that he had used methoxyflurane, he said "I can't remember that" when it was suggested to him that Mr Dickson had also offered to put him in contact with staff support services;
- he did not tell Mr Dickson "just let it go … it's nothing. Don't worry about it" as had been suggested. He also did not remember a conversation where Mr Dickson allegedly told him it was not possible to let it go and just do nothing;
- contrary to what he told Mr Hammond in his first show cause response about not being aware that he was under suspicion for having used methoxyflurane when he was admitted to Hospital, he actually did know that from the questions asked of him by Mr Dickson (and by Mr Hoey); and
- during his interview with Mr Berry "he glanced" at the first eARF but thought it was a waste of time looking at any more records if they all said the same thing (i.e. they were incomplete);
Mr Gett's evidence
- Mr Gett gave the following evidence in his two affidavits:
- as a critical care paramedic he had witnessed other paramedics, employed by QAS, utilise the pockets of their uniform to carry drugs - including methoxyflurane - in the course of their work;
- this allowed them to undertake patient care duties and discard the drug at a later time;
- an example of patient care duties where this might happen was a motor vehicle accident, where the paramedic might need to stow the inhaler in their pocket while they extracted a patient from the vehicle;
- in his experience, it was common for paramedics to administer both morphine and methoxyflurane to manage a patient in severe pain;
- paramedics were required to record discards in three separate records, namely: eARF, the Red Drug Book and the ADAPT program. The process of recording discards could be interrupted by continuous workflow requirements, such as being dispatched to the next job prior to completion of paperwork;
- in response to matters included in Ms Garrett's affidavit he said:
- heavy eyelids may occur occasionally in circumstances where the patient has had significant amounts of methoxyflurane;
- glassy or dazed eyes may occur occasionally in circumstances where the patient has had moderate amounts of methoxyflurane;
- in his 10 years of paramedic work he had never witnessed bloodshot eyes as a result of methoxyflurane use;
- slow movement and a lack of coordination may occur occasionally where the patient has had significant amounts of methoxyflurane;
- slow speech may occur occasionally in circumstances where the patient has had significant amounts of methoxyflurane; and
- patients who have been administered methoxyflurane are often honest and talkative.
- in response to matters contained in Mr Hoey's affidavit he said:
- glassy eyes may occur occasionally where the patient has had moderate amounts of methoxyflurane;
- a slower response time may occur occasionally where the patient has had significant amounts of methoxyflurane;
- there may occasionally be an impairment of cognitive function where the patient has had significant amounts of methoxyflurane; and
- confusion is not one of the things he associated with patients who had used methoxyflurane. Generally, they were aware of their surroundings and responsive to questions.
- in response to matters contained in Prof Ogden's report he said:
- if a Penthrox inhaler is left in the bin of a locked ambulance, it gives off a very noticeable smell if you return to the ambulance after a period of time;
- in his experience, the analgesic effects and the side effects of methoxyflurane coincide with each other and last for the same amount of time; and
- if a patient continually breathes from the whistle, they may continually experience the analgesia and side effects. Ultimately, if they stop inhaling from the whistle, the analgesic and side effects do not last long and typically wear off within minutes.
- Under cross-examination, Mr Gett said:
- a single-use instrument or article that may be contaminated from any source should not be used, or re-used, on a patient;
- a Penthrox inhaler that had fallen onto the floor of an ambulance should be discarded in accordance with the Infection Control Framework as it would be contaminated;
- a Penthrox inhaler that had been used by a patient, then placed in the uniform pocket of a paramedic, should also be discarded because it would be contaminated;
- the odour coming from a methoxyflurane whistle is "strong all the time, but it's stronger after it's been inhaled as well";
- a patient who had used methoxyflurane in significant amounts would have an altered level of consciousness or cognitive function. They would appear as if they had consumed "a couple of stiff drinks of alcohol in very short succession"; and
- the side-effects of methoxyflurane normally did not last very long. In his view, 10 minutes would be "a little bit excessive".
Dr Robertson's evidence
- Dr Robertson, a pharmacologist and forensic toxicologist, provided two affidavits in which he responded to a number of questions posed by Ms Voulcaris in two separate requests. The first set of questions asked him to assume a state of affairs which reflected Mr Costello’s evidence in these proceedings, while also taking into account the witness’ observations after he was found in the second cubicle, viz: strong odour of methoxyflurane; unsteady gait; slurred speech that was incoherent at times; red, bloodshot and glazed eyes; slow to respond; confused; heavily under the influence; and, altered state.
- In responding to this request, Prof Robertson said that he had read several published articles in the course of preparing his response and then summarised the articles. However, because of the limitations of the actual studies these articles referred to, I found the bulk of the content of his first affidavit to be of limited benefit. Nonetheless, he did go on to indicate that "many of the witness observations are not consistent with the described symptoms of individuals following the use of methoxyflurane e.g. red, bloodshot and glazed eyes, confusion, slurred and at times incoherent speech".
- In her second request, Ms Voulcaris asked Dr Robertson to respond to two questions, the first being his opinion as to the likely explanation for the strong methoxyflurane odour in the toilet, with the second being how long he would expect any cognitive, physiological or physical effects to be present after methoxyflurane has been administered.
- With respect to Ms Voulcaris and Dr Robertson, any view which the latter might have about how the smell of methoxyflurane came to be in the second toilet is purely speculative. As such, I do not intend to consider his various hypotheses.
- In responding to the second question, Dr Robertson referred to a study by Nguyen et al which examined the presence of any cognitive and psycho motor impairment following 15 minutes of inhalation of methoxyflurane. He said that the study found that impairment was small immediately after completion of inhalation and returned to normal within 30 minutes. As such, he opined that it was reasonable to assume that if any side effects occurred these would have been transient and not likely to have exceeded 30 minutes, potentially less.
- In the course of cross-examination, Dr Robertson said he was not a medical practitioner and had never drawn up a Penthrox inhaler and given it to anyone. He had also not observed methoxyflurane being poured into an inhaler to see if the liquid could leak out. Other than being present when someone had been given the device, his knowledge had been obtained from a review of the literature, the manufacturer’s instructions and “discussions with people”. Further, he had never smelt methoxyflurane himself.
- Under further questioning, Dr Robertson acknowledged that there were a few studies where the Penthrox inhaler had been misused by individuals for the purpose of dealing with anxiety or trying to achieve a euphoric effect. He also acknowledged that if it was used normally, such as pre—hospital use, methoxyflurane has the effect of relaxing a person, and that drowsiness was one of the documented adverse effects following its normal use. "Sedation, dizziness – they tend to be the predominant adverse effects following its use" he said.
Mr Paul's evidence
- Mr Paul was the acting Officer in Charge of the Southport Ambulance Station in May and June 2016. On or around 24 May 2016 Mr Costello approached him and asked to take accrued leave on I June 2016 at short notice for family reasons. This leave was approved. However, he did not have a conversation with Mr Costello, as alleged, in relation to any bad news about his daughter’s health, or that he was stressed, either at the start of Mr Costello's shift on 2 June 2016 or at all.
- In response to matters raised in Mr Costello’s and Mr Gett’s affidavits, Mr Paul said that paramedics should not carry drugs on their person, including in their pockets, and that methoxyflurane whistles should be discarded straight away if they are no longer going to be used. Carrying Pethrone whistles in one’s pocket went against all infection control principles, as the paramedic would not always know what had been in their pocket previously.
- Under cross-examination, Mr Paul continued to say that he did not recall any conversation on 2 June 2016, or at all, with Mr Costello about either Mr Costello's health or that of his daughter. He also said that he had never stored an unused drug in his pocket, and had never seen any of his partners do that either. They were trained not to. Methoxyflurane whistles should also not be put in one’s pocket because of the issue of infection control.
Mr Bakens' evidence
- Mr Bakens' affidavit included several additional points to those contained in his contemporaneous note of 2 June 2016, as follows:
- the staff bathrooms are in a hallway-type room which is lined with lockers on one side, with two toilet cubicles on the other side;
- as he entered the locker and toilet area he saw that both toilet cubicles were occupied. As he turned to leave he heard the far end toilet unlock. He stopped and waited for the person to come out of the toilet cubicle and heard a fumbling noise as the person attempted to exit the toilet cubicle;
- he observed Mr Costello exit the far end toilet. He was stumbling and had to use the lockers opposite the toilet cubicle to hold himself up;
- because he was concerned about Mr Costello, he asked him if he was OK. Mr Costello looked at him and said he was "having a really bad day", or words to that effect; and
- he asked Mr Costello whether he needed any help as he did not look well. Mr Costello stated words to the effect "I'm fine. I've just been having a really bad day" and mentioned something about a personal problem he was having.
- Under cross-examination Mr Bakens said that he did not know and had never spoken to Mr Costello before the night in question. As such, he acknowledged that while he believed Mr Costello’s speech was "slow and slurred", he had no ability to say whether this was different to the way he normally spoke. He also said he had not heard Mr Costello coughing before he came out of the toilet, acting "giggly" or being particularly talkative. There was also no evidence that he had vomited.
- Finally, Mr Bakens said that while he could not remember the specifics, the personal problem Mr Costello was having involved family.
Ms Wacker's evidence
- In her affidavit Ms Wacker provided several new pieces of information, or clarified other points she told Mr Berry, as follows:
- up until the events at the Hospital, Mr Costello was positive and relaxed, and there was nothing obvious about his appearance, personality or attitude;
- while they were at the triage desk he helped her fill in the paperwork, including helping her to spell different words. During this time he seemed fine and he was smiling at her a lot (i.e. in a supportive way);
- when Mr Costello was escorted back into the triage area by Mr Hoey and another paramedic he appeared upset and was looking at the ground;
- after the patient was admitted she went back and sat in the ambulance. Mr Costello came back and started to check a few things, like he was getting ready to go back on the road. However, Mr Hoey told him words to the effect that he (Mr Costello) should go home;
- about 40 minutes later she needed to go to the bathroom and told Mr Costello, who was sitting in a chair, where she was going. He "looked really sad and upset, had his head down, and just nodded his head and barely talked to me"; and
- on the way back from the bathroom she told him she hoped that everything was OK and thanked him for his help that day. He did not look at her, he just nodded, with his head down.
- Under cross-examination, Ms Wacker could not remember telling Mr Dickson words to the effect Mr Costello had acted oddly towards the end of the transport of the patient. When pressed on that point, she had no recollection of Mr Costello's demeanour or what she might have said to Mr Dickson.
Mr Hoey's evidence
- Mr Hoey's affidavit also provided some additional information to that he had recorded in his contemporaneous note and during the course of his interview with Mr Berry, as follows:
- after explaining what he had witnessed in the toilet area, Mr Bakens also told him that Mr Costello said he just had a vasovagal episode;
- the toilet door of the cubicle where he found Mr Costello was locked so he knocked on the door. After giving enough time for someone to respond to his knock, and not receiving any response, he unlocked the door from the outside and opened it;
- Mr Costello was sitting on the closed toilet with his elbows on his knees and his head down. He had a methoxyflurane inhaler in his hand and the wrist strap hooked around his wrist. There was a strong smell of methoxyflurane. He stood without speaking for approximately five seconds. Mr Costello seemed unaware of his presence and then looked up. His eyes were glassy and bloodshot and he appeared "confused, slow to respond and appeared to be slow to acknowledge what was going on around him";
- having administered methoxyflurane up to four times a day, he recognised its distinct smell and side-effects;
- in his experience the side-effects generally associated with a person who had been administered methoxyflurane included: bloodshot eyes; glassy eyes; being slow to respond; be confused as to their surroundings; impairment of cognitive function; becoming giggly and laughing more; and unconsciousness for a short period of time;
- after he asked Mr Costello what was going on he replied with words to the effect that he needed a minute. He said to Mr Costello words to the effect "I'll take that one off you". He then removed the wrist strap of the inhaler from Mr Costello's wrist and took the inhaler from him. Mr Costello looked at the inhaler and then at him following which he said words to the effect that he had not been using the inhaler;
- after speaking to Mr Dickson he noted that Ms Wacker and the patient were no longer in the ramping area. He found Ms Wacker in the process of handing over to a nurse in the emergency department. He stayed with them while the handover was completed;
- shortly after this, Mr Costello suggested that he was alright and they should head back to the station. However, he told Mr Costello that he was not happy with him driving a vehicle or treating patients in his current state and he needed to go home;
- Mr Costello did not speak to him about his daughter's health at the start of the shift. The discussion happened during the course of the shift;
- he did not remember Mr Costello saying words to the effect "I am just really worried about my daughter" when he asked him what was going on in the toilet cubicle.
- Under cross-examination, Mr Hoey said:
- he could not recall if Mr Bakens said anything about smelling a strong chemical smell, or methoxyflurane, in the toilet area. He also could not recall whether Mr Bakens said anything about smelling a chemical smell or methoxyflurane on Mr Costello's breath;
- from the strength of the smell in the second toilet he believed Mr Costello must have just been using it. He also agreed that the strong smell was an important part of the scene he had just taken in;
- he had a fair understanding Mr Costello had been using the methoxyflurane because "as soon as I opened the door the smell hit me … and I looked at him";
- he did not hear Mr Costello coughing, being particularly giggly or unusually talkative. There was also no evidence that he had vomited; and
- he could not recall smelling methoxyflurane on Mr Costello's breath.
- In re-examination, Mr Hoey said that while Mr Costello only said a few words in the toilet, he formed his view about Mr Costello's speech being slower than earlier in the day from subsequent conversations he had with him. He wasn't answering questions very quickly and he was taking his time to answer. In prior conversations, earlier in the shift, if he was asked a question he would normally answer straight away.
Ms Garrett's evidence
- Like Mr Hoey, Ms Garrett also provided additional information in her affidavit to that contained in her contemporaneous note and her interview with Mr Berry, as follows:
- from her experience as a paramedic observing patients being administered methoxyflurane, she formed a view that Mr Costello had been using methoxyflurane. He had bloodshot eyes, droopy eyelids, slurred speech, and was moving slowly;
- while they were walking away from the toilet, Mr Costello was talking about his daughter, stating words to the effect that he was upset and concerned about her. He was slurring his speech and speaking slowly and in a repetitive manner. His demeanour was flat;
- while she was outside with Mr Costello, he kept speaking of his daughter having a café latte (sic) skin condition. However the story was inconsistent and confusing to follow;
- he showed her some images on his phone of the condition he thought his daughter might have. These showed abnormal skin blotches or rashes;
- two of the images in attachment JC-2 to Mr Costello's affidavit were similar to those he showed her;
- however, she could not recall seeing images of persons with lumps on them, like those depicted in JC-2, in the images Mr Costello showed her;
- Mr Costello's first response after Mr Hoey spoke to him in the toilet cubicle was to deny that he had used the methoxyflurane whistle. It was only after this that he mentioned his daughter;
- in her experience, the symptoms generally associated with a person who has been administered methoxyflurane include: heavy eyelids, glassy or dazed eyes; bloodshot eyes can be present in some patients; slow movement, which can be uncoordinated at times; slowed speech; honest and talkative behaviour; and, reduced inhibition; and
- having, from time to time, witnessed patients having a panic attack, the symptoms she would generally associate with such scenario included: an increase in heart rate; an increase in breathing; shaking; hyperventilation; signs of anxiety; and, either fast talking or not talking at all.
- Under cross-examination, Ms Garrett said:
- she was not sure now whether the Penthrox whistle was hanging from Mr Costello's wrist or in his hand, but accepted she might have told Mr Emery and Ms Pereira that the inhaler was "swinging as he sat there". She also accepted that she had not told Mr Berry on 23 June 2016 whether he was holding the string or holding the inhaler.
- although she had never worked with Mr Costello or had more than a few conversations with him, she was "certain" that he was slurring his words significantly more than he normally did after she saw him in the toilet area;
- "I had a conversation with him when I first walked into the triage area, however many minutes prior to that, and Officer Costello in the toilet was presenting differently, with speech, with eyes, facial expressions, behaviour, mobility."; and
- when Mr Costello was talking to her about his daughter she was having trouble following what he was saying. This was because his conversation - and the way he was responding to the questions she asked - was inconsistent and she could not follow his answers. She was concerned at the time about what he was telling her about his daughter and she was asking questions due to that concern. However, his answers were inconsistent and his conversation was inconsistent. "It didn't make sense."
Mr Dickinson's evidence
- In the course of his affidavit Mr Dickson said:
- after receiving a report from Mr Hoey about the events he had witnessed, he asked both Mr Hoey and Mr Dickson to come into the write up room so that they could talk privately;
- he said to Mr Costello that he had been advised by Mr Hoey that he (Mr Costello) was not coping well with the day's events and asked him to explain what was happening;
- Mr Costello stated words to the effect that nothing was wrong and kept repeating that he had not used methoxyflurane;
- when he again told Mr Costello that if he was not coping that he would need to go home, Mr Costello attempted to assure him there was nothing wrong and continued to deny that he had used methoxyflurane. In continuing to do so, he was very defensive;
- Mr Costello had bloodshot eyes, he was slurring his speech, he had an unsteady gait, he was not in control of his emotions and his thought processes came across as bizarre and haphazard;
- he asked Mr Costello to explain the circumstances about being found in a toilet cubicle with a methoxyflurane whistle in his hand. Mr Costello explained that he had gone to the toilet to have a moment, because he was upset about his daughter, and when he sat down he realised the whistle was in his pocket as he had forgotten about it. It was at this point that Mr Hoey opened the door; and
- after speaking with Ms Garrett, Mr Bakens and Mr Young he had a further discussion with Mr Costello. During this discussion Mr Costello stated words to the effect "just let it go" and "it is nothing, don't worry about it".
- Under cross-examination, Mr Dickson said:
- when he first talked to Mr Costello in the write up room, he looked depressed, emotional and like he had been crying;
- what he meant by saying that Mr Costello was "defensive" during their conversation was that he (Costello) repeatedly asked him to "drop" the matter because he had issues at home, his child had recently been diagnosed with a medical condition, and he was not coping with it; and
- when he first spoke to Mr Costello in the write up room, there was a distinct smell of methoxyflurane coming from Mr Costello, although he was not sitting close enough to smell his breath. When he commented about the smell to Mr Costello, he responded with words to the effect that the smell was still on him because the whistle had been in his pocket.
Mr Berry's evidence
- Notwithstanding Mr Costello's significant criticisms of Mr Berry's report, as well as the way he conducted the investigation (see Mr Costello's submissions below), there were a number of matters raised with Mr Berry during his cross-examination which are worth mentioning at this juncture, as set out below:
- if there was relevant and important evidence that was helpful to Mr Costello that weighed against a finding that he used methoxyflurane, then it would be appropriate to address that evidence in his report;
- this is because anyone reading the report needs to be aware of evidence that is relevant and important that weighs against a finding of guilt;
- all of the evidence in respect of allegations 1 and 2 was circumstantial. No-one saw Mr Costello using methoxyflurane;
- after questioning them, he accepted the inferences drawn by Mr Hoey and Ms Garrett about what they had seen, and smelled, in reaching his own conclusion that Mr Costello had, on the balance of probabilities, used methoxyflurane;
- he accepted that Mr Hoey and Ms Garrett would have the ability and clinical experience to be able to identify the odour of methoxyflurane and comment on its strength;
- one of the reasons he accepted this was because Mr Costello had also stated that other paramedics would have a similar explanation about the smell of methoxyflurane when it is in use and not in use;
- he was comfortable with the conclusion he drew about the strength of the smell of methoxyflurane in the bathroom (i.e. strong) because "paramedics are appropriate experts on this question";
- the strength of the smell was a significant factor in his assessment of the evidence;
- he did not enquire of Mr Hoey how full, or empty, the Penthrox inhaler was;
- bloodshot eyes were not a common symptom of methoxyflurane use;
- although Mr Costello told him during the interview that he was, most likely, having a panic attack, he did not make any finding – one way or the other – about that matter;
- while he accepted the evidence of Mr Dickson that Mr Costello was slurring his words, he did not know (until he was in the witness box) that Mr Dickson had never met Mr Costello before the night in question;
- Mr Dickson’s evidence that Mr Costello was still slurring his words during the drive to Mudgeeraba was a statement that "went into the mix" in terms of his deliberations about whether Mr Costello had used methoxyflurane, but nothing in particular rested on Mr Dickson’s evidence about that matter;
- while agreeing that Mr Dickson's contemporaneous note was not referred to in his report, or included as an attachment - and acknowledging several times that he must not have seen it - he also said that he believed he had access to it. However, he was at a loss to provide a reason why it had not been mentioned or included in the report;
- he did not mention Mr Young's evidence about Mr Costello slurring his words and being unsteady on his feet, some 90 minutes after he was found in the toilets, because the focus of the investigation was about what was seen, smelt and heard at the location of the incident;
- he also did not mention that Mr Young retrieved the inhaler from a waste bin and gave it to Ms Latimer but no one knew what happened to it after that;
- in addition, he did not mention that the inhaler had not been analysed, as required under the Code of Practice, or otherwise tested;
- when he started to ask Mr Costello questions about missing data on the eARFs, the response was "if they're not there, I didn’t document them…";
- notwithstanding the changes Ms Pieria made to his draft report, he was responsible for the content of it and remained satisfied that the content was his;
- a number of points made in his draft report were not included in the final report. These included: Ms Wacker’s evidence about the puncture wounds on Mr Costello's arm; Mr Dickson's audit of the drug safes; Mr Young's evidence about Mr Costello’s physical appearance at Mudgeeraba; and, there being no evidence that the register of schedule 8 drug records had been violated;
- there was no allegation that: Mr Costello had not completed the ADAPT and Red Book entries appropriately; any drugs were missing; or, any patient records had been falsified;
- Mr Costello’s high usage of morphine, and his high discard rate, were both of concern and a "red flag"; and
- while there were no allegations of impropriety on Mr Costello's part, it would have been remiss of him (Mr Berry) not to mention the high usage and discard rates in his report.
Mr Hammond's evidence
- Although Mr Hammond was the person who directed Mr Berry to conduct an investigation into Mr Costello's alleged use of methoxyflurane, considered that report when it was provided to him and ultimately determined, after several show cause notices and responses, that there was sufficient evidence before him to recommend to the decision maker – Mr Emery – that termination of Mr Costello's employment was the appropriate disciplinary finding, he was not the ultimate decision maker. He was the proverbial "middle man" in the matter. As such, with due respect to Mr Hammond and the position he holds, is not my intention to say very much about his evidence – either in its original form or under cross-examination.
- Indeed, other than noting that Mr Hammond agreed on several occasions that it would have been better if Mr Berry had included additional information in his report, or that it would have been better if Mr Berry had not "misstated" certain evidence when questioning Mr Costello, very little other mention was made of Mr Hammond, or his role in the whole matter, in Mr Costello's final submissions.
Mr Emery's evidence
- As the decision maker, Mr Emery was subjected to intense cross-examination by Counsel for Mr Costello. In response to questions asked of him, he said the following:
- notwithstanding all of the other information before him, there was very important information within the knowledge of officers Garrett and Hoey that he wanted to hear for himself;
- this was because they were the persons who found Mr Costello in the toilet and he wanted to obtain a first-hand account directly from them;
- he thought their first-hand evidence of what they saw in the toilet was important in terms of determining whether or not Mr Costello used methoxyflurane;
- in respect of the conclusion he reached that Mr Costello had used methoxyflurane, it was important that the evidence disclosed that he presented in an altered state only after having excused himself to go to the toilet;
- although he had not seen Mr Dickson's account of his discussion with Ms Wacker in Mr Dickson's contemporaneous note until he was in the witness box, he did not believe that his decision to terminate Mr Costello would have changed had he read the account at the relevant time;
- this was because Ms Wacker had gone on to indicate that she did not find Mr Costello's behaviour to be abnormal and "her description is nowhere near as vehement and obvious as the description that Garrett and Hoey gave of his behaviour. It's very different to staggering around and being distant and the sort of things… they said in their… evidence";
- although Mr Young observed Mr Costello to be unsteady on his feet, with speech that was not fast reacting - which was consistent with what Mr Hoey and Ms Garrett witnessed - some 90 minutes or so after being found in the toilet, he still preferred the evidence of Mr Hoey and Ms Garrett over Mr Young's evidence;
- this was what they witnessed and their clinical view that methoxyflurane had been used: because of the pungent smell that was in the cubicle with him and the way he was reacting;
- he would not expect Mr Young to opine that Mr Costello was under the influence of methoxyflurane 90 minutes after the alleged use because he (Young) would know it was a relatively short acting drug;
- while he was concerned that Mr Young saw Mr Costello to be affected in some way, he was not concerned that Mr Young's observation changed the evidence of Mr Hoey and Ms Garrett;
- although the Drug Management Code of Practice included a requirement that any packaging (and the like) involved in cases of suspected theft, misappropriation, tampering or misuse was to be retained and submitted via reporting channels for "analysis", he had never heard of anyone having saliva tests, or DNA tests, performed on a piece of equipment;
- the Code of Practice was a broad document covering the requirements for all drug management. The "analysis" if contemplated would more likely occur if there was suspected tampering of a vile, something like that which was more easily analysed;
- although Ms Garrett mentioned that Mr Costello's eyes were really bloodshot, he did not take that to be an indicator that Mr Costello was under the influence of methoxyflurane;
- both Mr Hoey and Ms Garrett "were particularly convincing in terms of their recollection of the events and how accurate it was to their contemporaneous notes. That was what was actually compelling about talking to them.";
- Mr Costello's failure to follow the proper procedures regarding his documentation, as per allegation 3, would not have been fatal to the employment relationship. Any disciplinary action in respect of that matter would not have come to him because it would have been a performance management, low end, disciplinary issue. QAS's concerns about that matter were included because it came up in the investigation;
- he viewed allegations 1 and 2 as a separate matter from allegation 3;
- "the fact that there were high discard rates is neither here nor there as long as it's documented appropriately and is deemed to be clinically appropriate and there's a reason to give a small amount and discard the balance. That's part of the administration practice; discards are part of what we do. It's how they're documented… That's the point.";
- the issue with Mr Costello was about the documentation of his discards. "It's about whether it's transparent or not through the documentation process.";
- while the issue of the level of Mr Costello's discards was of concern to both he and Mr Hammond, the allegation was around how those discards were documented - not the level of them;
- when talking to Mr Hoey and Ms Garrett, he did not to ask them where the methoxyflurane smell was coming from; and
- nobody gave evidence that they smelt a methoxyflurane smell coming from Mr Costello's breath.
Prof Ogden's evidence
- Prof Ogden is a qualified medical practitioner who is familiar with all aspects of ambulance procedure. In 1994 he was the inaugural medical director of the NSW Ambulance Service. From 1995 until the present day he has maintained his skills working in private emergency departments. He is familiar with the use of methoxyflurane, as well as its smell and actions.
- In his affidavit, Prof Ogden said:
- there is always a slight smell emanating from a charged methoxyflurane inhaler;
- the most common effect of an inhalation agent like methoxyflurane is drowsiness;
- according to the manufacturer, a small percentage of patients develop adverse symptoms that can persist for 48 hours including: feeling "drunk"*, memory disturbance, dizziness, slurred speech, headache, migraine and sleepiness (*Note: this was later qualified to clarify that only a small percentage of person had symptoms of being "drunk" 48 hours later);
- the physical presentation of a person who has inhaled methoxyflurane is dependent on the amount of drug inhaled;
- the concentration of vapour inhaled through the Penthrox device is designed to be between 0.2% and 0.4% with the diluter hole uncovered and between 0.5% and 0.7% with the hole covered;
- a panic attack is an episode of intense anxiety associated with physical sensations and hormonal responses of fear. The symptoms include: racing heart, shortness of breath, dizziness, trembling and muscle tension. There can be heightened vigilance, anxious and irrational thinking, trembling or shaking, sweating, hot flushes and dry mouth;
- an external observer may see the physical manifestations of a panic attack as wide-eyed alertness, shaking, restlessness and anxiety;
- "experienced paramedics have regular experience of the effects and the odour of methoxyflurane. They have greater experience in the use of this drug than most other clinicians. The observations made by the paramedics in this case should be considered as the judgement of experts."; and
- "Methoxyflurane is largely eliminated by metabolism with only 20% being lost by exhalation. The half-life of the drug in the body is 1 to 2 hours. Since it takes five half-lives to effectively eliminate the drug, some effects are likely to last several hours, especially if there has been intoxication.".
- Under cross-examination Prof Ogden said:
- he had handled Penthrox devices on many occasions and had never known liquid to spill from one;
- bloodshot eyes were not a common symptom of methoxyflurane use;
- "it would clearly be possible" to test a person's blood or urine for the presence of methoxyflurane. "It ought, theoretically, be possible" to test for it. It would depend upon concentration and timing;
- however, just because a test is conducted, it may not find that which is being sought if the test is not sensitive enough;
- once a person stops using a methoxyflurane whistle, the smell dissipates fairly quickly;
- it was difficult to state, with any degree of certainty, how long the side-effects of methoxyflurane use would last. It would depend upon the concentration and the dosage the person inhaled; and
- if someone was given a very large dose they might be affected for hours.
Evidence of Dr Bodnar
- In the course of his affidavit Dr Bodnar provided the following information:
- methoxyflurane is administered by pouring the drug (which comes in liquid form) into a whistle device. The device contains a “wick” which absorbs the methoxyflurane. The whistle is then given to the patient, who inhales the air in the whistle, which contains the methoxyflurane in a vapour form;
- when the patient inhales methoxyflurane, it provides the patient with pain relief;
- methoxyflurane is fast acting, but its pain relieving effect is short-lived. Pain relief is provided while the patient is receiving methoxyflurane, however its pain relieving effects wear off when the patient stops receiving it;
- the side effects of the administration of methoxyflurane include:
- relaxation and a lowering of anxiety levels;
- patients appear in an altered state: “doughy”, sleepy, unfocused and blurry eyed;
- slurred speech; and
- in high doses, amnesia; and
- if an individual is suffering a panic attack, the symptoms are in stark contrast to someone who has ingested methoxyflurane, namely: the individual is usually hypervigilant, pale, sweaty and hyperventilating.
- As noted in paragraph  above, Dr Bodnar was not required for cross-examination.
Submissions on behalf of Mr Costello
- The legal representatives for Mr Costello submitted a detailed 58-page submission in support of the argument that Mr Costello's termination was unfair - in that it was harsh, unjust and unreasonable - and that he should be reinstated to his former employment with QAS. The submission referred, extensively, to the evidence said to have been given by various witnesses and advanced numerous arguments in support of the contention that Mr Costello's termination was unfair.
- With respect to whoever drafted them, the submissions were framed as if this was a criminal trial and the burden of proof was "beyond reasonable doubt". For example:
- it was submitted that because the Penthrox inhaler had not been tested or analysed it was not known whether it was a damaged or cracked – which, it was argued, would affect the strength of the smell it would emit when idle. However, it was never suggested by Mr Costello, or put to Mr Hoey who had possession of the inhaler for a period, that the inhaler was damaged or cracked:
- Mr Berry was criticised for overstating the evidence in his interview with Mr Costello, when he said that the witnesses reported a methoxyflurane smell in both toilets and that both witnesses saw the strap of the inhaler around his wrist;
- Mr Berry's report "irrelevantly stated four times words to the effect that Costello had the 'opportunity' or 'sufficient time' to appropriately discard the inhaler, notwithstanding that Costello never asserted that he failed to discard the inhaler due to insufficient time or opportunity."; and
- Mr Emery's question to Ms Garrett about whether the strap of the inhaler was looped around Mr Costello's wrist was described as an "effort to bolster Ms Garrett's evidence so that it could match Hoey's evidence" and had the effect of contaminating her recollection.
- Further, the submission included numerous arguments and/or submissions which attempted to draw inferences from the evidence which were not properly representative of what was said or the actual context. For example, paragraph 2.12 (e) of the submission says:
the fact that Garrett found Mr Costello’s description of his daughter’s condition to be ‘inconsistent and confusing’ is readily explained by the fact that she had never before heard of the condition and was still in ‘shock’ when Mr Costello tried to speak with her about it.
- The fact that Ms Garrett had not previously heard of Mr Costello's daughter's medical condition does not lead to a conclusion that she would find anything he told her about that condition to be "inconsistent and confusing". Equally, it is a very long bow to draw to suggest that she thought Mr Costello's description was inconsistent and confusing because she "was still in shock" when she spoke to him. Her clear evidence was that she was very shocked by what she saw, not that she was in "shock", as that term would be understood by a medical professional. There is a significant difference between her frame of mind as she described it and the one attributed to her in the submission.
- Other examples of evidence being "overstated", or taken out of context, can be seen at the following places:
- paragraph 2.17 and following two paragraphs - where it was submitted that Mr Dickson's evidence was that Mr Costello was still showing "the same" symptoms around 9.00 pm. The transcript shows that Mr Dickson responded to a question about whether Mr Costello was still showing symptoms at this time by responding "(he) still had bloodshot eyes", then answering "Yes" to the somewhat confusing question "Slurred and the bloodshot eyes still present at about 9.00 pm, weren't they?". However, these were not the only symptoms Mr Dickson described Mr Costello as having, when he first encountered him, elsewhere in his evidence; and
- paragraph 2.51 – where it was submitted that the very strong methoxyflurane smell Mr Dickson smelt in the write up room could have emanated from Mr Hoey “who had the whistle sitting idle in his pocket”. This statement is inaccurate. There was no evidence that Mr Hoey had the whistle in his pocket at any stage, let alone in the write up room. His unchallenged evidence was that he had thrown it into a waste bin well before that.
- However, notwithstanding issues such as those referred to above, the overall nature and thrust of the submissions can be seen in the very helpful summary (at paragraphs 7.9 to 7.25) of the written submission, which are reproduced below (citations omitted):
7.9 In the present case, Costello's dismissal was:
- (a)unjust, because he was not guilty of the misconduct on which the Respondent acted;
- (b)unreasonable, because it was decided upon inferences which could not reasonably have been drawn from the material before the employer; and
- (c)harsh, in its consequences for the personal and economic situation of Mr Costello.
7.10 As to (a) and (b), it is clear that there was and is insufficient evidence to safely support a finding of guilt in Mr Costello's case; and that the crucial inferences that were drawn by the employer could not reasonably have been drawn.
7.11 Firstly, the Respondent's investigation and decision to dismiss ultimately rests on the evidence of Hoey and Garrett about two matters:
- (a)Mr Costello's presentation after they found him in the toilet cubicle (see section 2A above); and
- (b)their subjective perception of the strength of a methoxyflurane smell that they smelled in the cubicle (see 2B above).
7.12 In both respects, the evidence was incomplete, inadequate and unsafe to rely upon. In both respects, witnesses drew inferences from the circumstantial evidence that were unsafe and unfair (and which were adopted by the investigator and the decision-makers).
7.13 On these two crucial matters, there was insufficient evidence to safely ground a finding that Mr Costello used the methoxyflurane.
7.14 Secondly, the investigator and the Respondent's decision-makers wrongly failed to take into account relevant evidence, including:
- (a)the evidence of Officer Young, an officer with 37 years' experience, who said that Costello's presentation was not consistent with methoxyflurane use (see 3A above);
- (b)the evidence of Ms Wacker that had Costello acting 'normally' after the incident (see 3B above); and
- (c)Officer Terence Dickson's contemporaneous note, which included an account from Ms Wacker that had Costello appearing upset before arriving at the Hospital and going to the bathroom (see 3C above).
7.15 The failure to consider and properly weigh this evidence, and the failure to investigate to its logical conclusion what the evidence suggested, led the investigator (and the Respondent's decision-makers) into error.
7.16 Thirdly, the investigator and decision-makers wrong took into account irrelevant matters when making their respective decisions, including by
- (a)disbelieving Costello's evidence on the basis of his admission that he put the inhaler in his pocket contrary to proper clinical practice (see 4A above);
- (b)disbelieving Costello's evidence on the basis of the mistaken view that his apparent use of methoxyflurane and morphine in conjunction was an 'anomaly' (see 4B above);
- (c)disbelieving Costello's evidence on the basis that he had 'sufficient time' to discard the inhaler (see 4C above);
- (d)unreasonably having regard to, and being influenced by, the undefined 'concern' about Costello's high administration and discard rates (notwithstanding that no finding was made about them) (see 4D above); and
- (e)unreasonably relying upon the CCTV footage to support a finding of guilt when, on a reasonable viewing, it does not (see 4E above).
7.17 This led the investigator, and the Respondent's decision-makers, into error.
7.18 Fourthly, crucial evidence was lost or never secured by the investigator, and never considered by the Respondent's decision-makers, including
- (a)the loss of, and failure to analyse, the Penthrox inhaler that Costello was alleged to have used (see 5A above);
- (b)the lost opportunity to test Mr Costello to determine whether methoxyflurane was present in (or absent from) his system (see 5B above); and
- (c)the lost opportunity to interview one of the primary witnesses, Registered Nurse Bakens (see 5c above).
7.19 This lost evidence compromised the fairness of the investigation and the resultant decision to dismiss.
7.20 Fifthly, the investigation and dismissal processes were otherwise unfair, because:
- (a)the investigation was pre-judged and undertaken without disclosing to Mr Costello the complete nature and purpose of the investigation (see 6A above);
- (b)the investigator overstated the evidence when interviewing Mr Costello (see 6B above);
- (c)Mr Costello was provided no fair opportunity to answer the drug discards paperwork allegation (see 6C above);
- (d)Emery's post-investigation discussions with Hoey and Garrett resulted in the contamination of Garrett's evidence, and were emblematic of the lazy and incomplete approach to the evidence (see 6D above);
- (e)the final investigation report, on which the decision-makers relied, was riddled with fundamental errors (see 6F above).
7.21 Finally, as for the harshness and personal and economic consequences for Costello, it is sufficient to make reference to Mr Costello's affidavit and to say this: Mr Costello was unfairly dismissed from his employment in his chosen profession as a paramedic by the primary paramedic employer in Brisbane. Mr Costello must effectively look interstate in order to obtain alternative employment as a paramedic.
7.22 Typically, an Applicant bears the onus of proof. But because the Applicant was dismissed for alleged serious misconduct, involving criminal activity, it is the Respondent that bears the onus of proof in this case:
Prima facie, in an unfair dismissal case, the Applicant carries the burden of establishing, on the balance of probabilities, that the dismissal was harsh, unjust or unreasonable. However, in cases involving a dismissal because of serious misconduct or alleged criminal conduct, the onus shifts from the Applicant employee to the Respondent employer. (Blows at )
7.23 In the present case, the Respondent must establish, to this Honourable Commission's reasonable satisfaction, that Mr Costello was guilty of the alleged misconduct. The appropriate standard of proof is that described in Briginshaw.
7.24 The nub of this case is captured simply as follows: if this Honourable Commission is not reasonably satisfied that Mr Costello was guilty of the alleged misconduct, then he was unfairly dismissed.
7.25 On the evidence before this Honourable Commission, for the reasons set out above, the Respondent cannot discharge its onus. It cannot be safely found that Mr Costello was guilty of the alleged misconduct.
Submissions on behalf of QAS
- The submissions filed on behalf of the Respondent, on the same day as those of Mr Costello, ran to over 130 pages. However, Counsel for QAS, like the legal representatives of Mr Costello, conveniently set out his client’s case in outline towards the front of the submissions (paragraphs 11 to 38), which I reproduce below for convenience (some minor changes to grammar and layout to improve readability; transcript references omitted):
On 2 June 2016, the Applicant was a person under great anxiety
- 11.The Respondent's case is that on 2 June 2016, when the Applicant started his 10 hour shift, he was person under great anxiety due to:
- (a)the knowledge that an increase in café au lait spots on his daughter's skin was a clinical symptom for neurofibromatosis;
- (b)the advice given to him (and his wife) by their daughter's doctor on 1 June 2016 that the increased number of café au lait spots recently noticed on their daughter's skin was a clinical pointer to neurofibromatosis;
- (c)the Applicant's wife's greatly increased anxiety due to the potential that their daughter could possibly be diagnosed with neurofibromatosis; and
- (d)the Applicant's wife's anger at the Applicant because the Applicant was not supporting her and he was not taking the matter of their daughter's health seriously.
The Applicant knew that using methoxyflurane would lower his anxiety
- 12.The Respondent says that because of the Applicant's experience as an ACP, he knew that the inhalation of methoxyflurane would immediately lower his anxiety. When he saw the methoxyflurane inhaler (which had been drawn up for a second time) fall on the floor of the ambulance as the stretcher with the elderly lady patient (the patient) was being removed from the ambulance, the Applicant put the methoxyflurane inhaler in his right cargo pants pocket.
The Applicant's testimony about why he put the inhaler in his pocket and that he forgot the inhaler was in his pocket is false
- 13.The Applicant's pre-trial and trial testimony that he put the methoxyflurane inhaler in his right cargo pants pocket to give it back to the patient if she need it for pain relief when she was in the Triage area of the Hospital and that he "forgot" it was in his right cargo pants pocket was false.
- 14.There are a number of reasons for this submission.
- 15.First, given the methoxyflurane inhaler had fallen on the floor of the ambulance and because the Applicant then put the inhaler in his pocket, his conduct was totally inconsistent with all infection control measures as contained in the QAS Infection Control Framework (the Infection Control Framework) taught to, known and observed by the Applicant. This was a deliberate action by the Applicant, to put the inhaler in his pocket which was expressly against the Infection Control Framework that was known and observed by the Applicant.
- 16.Secondly, his evidence was that he was going to give it back to the patient if she needed it later for pain relief. However that was inconsistent with any reasonable pain relief technique because if the patient needed to use the methoxyflurane inhaler in the Triage area, the obvious thing to do, as had been the case when the patient was in the ambulance (which on the Applicant's account to Mr Berry on 4 August 2016, she held onto the inhaler when she in the ambulance but dropped it just before they got to the Hospital), was to give it back to her and leave it with her on the stretcher if she needed it.
- 17.Thirdly, there was (and is) no evidence that the Applicant told Mr Hoey or Ms Wacker that he saw the methoxyflurane inhaler fall on the floor of the ambulance and there was (and is) no evidence that the Applicant told Mr Hoey or Ms Wacker that he put the inhaler it in his pocket for the purpose of giving it back to the patient if she need it for pain relief when she was in the Triage area of the Hospital.
- 18.Fourthly, given the 2.5 mg of morphine the Applicant himself had administered to the patient in the Triage area of the Hospital soon after he, Mr Hoey, Ms Wacker and the patient arrived at the Hospital, the use of methoxyflurane at that point, namely when they were actually in the Hospital Triage area, was redundant.
- 19.Fifthly, his actions were inconsistent with the Infection Control Framework because he had every opportunity, prior to and when he was in the Triage area, to safely dispose of the methoxyflurane inhaler in accordance with the Infection Control Framework. The Applicant did not do so before or after he gave the 2.5 mg of morphine to the patient and before he went to the first toilet he visited on that evening - being the staff toilet in the Emergency Department at the Hospital (the staff toilet).
- 20.Sixthly, as seen on the CCTV footage, on three (3) separate occasions, he put his right hand deep into his right cargo pants pocket to retrieve and replace the morphine syringe and flush (being the same pocket in which he had placed the methoxyflurane inhaler). Given these clear actions, he felt the methoxyflurane inhaler in his right cargo pants pocket, and as such, the Applicant knew he had the methoxyflurane inhaler in his right cargo pants pocket. Indeed, it was only a matter of about 10 minutes after the Applicant had arrived at the Hospital with the patient, put the inhaler in his pocket and then first reached into his pocket to retrieve the morphine and the flush which he administered to the patient. Given the short time frame, the Applicant could not have forgotten he had the inhaler in his pocket.
- 21.The Applicant then told Mr Hoey and Ms Wacker he was going to the toilet. The applicant went first to the staff toilet and then to the patient toilet to self-administer the methoxyflurane to give himself some immediate relief from his anxiety.
The observations of the Applicant in the staff and patient toilet are consistent with the paramedic and expert evidence of someone who has administered methoxyflurane
- 22.Given the observation of Mr Bakens while he was waiting for Applicant to leave the last cubicle in the staff toilet and Mr Bakens' observation of the Applicant after the Applicant had exited the last cubicle in the staff toilet, the Applicant self-administered methoxyflurane in the staff toilet to relieve his anxiety.
- 23.The observation of Mr Bakens of the Applicant after the Applicant exited the last cubicle in the staff toilet was not consistent with someone having a panic attack – namely being hypervigilant, sweating or hyperventilating as stated in the expert evidence of Dr Michael Robertson (Dr Robertson) in cross-examination, the expert evidence of Professor Edward Ogden (Professor Ogden) and the (uncontested) expert evidence of Dr Daniel Bodnar (Dr Bodnar).
- 24.As the Applicant was seen in the state he was in by Mr Bakens and knowing he could not return to his work colleagues, Mr Hoey and Ms Wacker, in that state, he walked about 50 metres through the Emergency Department to the patient toilet and continued the relief of his anxiety; the Applicant self-administered methoxyflurane in the patient toilet.
- 25.By that stage Mr Bakens had alerted Mr Hoey to the Applicant's state as he had observed the Applicant and Mr Hoey and Ms Garrett then went to find the Applicant.
- 26.On the evidence, Mr Hoey and Ms Garrett found the Applicant within about 10 to 15 minutes after the Applicant said he was going to the toilet.
- 27.Even if the Commission does not accept that the Applicant self-administered methoxyflurane when he was in the staff toilet, it is submitted that the Commission must accept, on the clear evidence, that the Applicant self-administered methoxyflurane in the patient toilet. This is due to:
- (a)the very clear evidence of Mr Hoey and Ms Garrett of what they smelt when the door of the patient toilet was opened and when they found the Applicant sitting on the closed toilet with his pants up, namely: a "strong smell of methoxyflurane in the toilet" and that the cubicle "smelled very strongly" of methoxyflurane;
- (b)what Mr Hoey and Ms Garrett both observed of the Applicant, when the door of the patient toilet was opened and they saw the Applicant, namely: that the Applicant was sitting on the toilet, head down or leaning forward, with his elbows on his knees, that he had the methoxyflurane inhaler in his hand, he was slow to respond, his speech was slower than normal and had bloodshot eyes, droopy eyelids, slurred speech and was moving slowly;
- (c)what Ms Garrett observed of the Applicant when he walked from the patient toilet through the Triage area to the Ambulance Bay outside of the Hospital, namely: slurring his speech, speaking slowly and in a repetitive manner and that his demeanour was flat; and
- (d)the very clear evidence of what Mr Dickson observed of the Applicant when he spoke to the Applicant in the write up room at the Hospital (before they left for the Mudgeeraba QAS station), namely: that he could smell methoxyflurane around and coming from the Applicant and that the Applicant had bloodshot eyes, the Applicant was slurring his speech, the Applicant had an unsteady gait and that the Applicant's thought process came across as bizarre and haphazard.
- 28.What Mr Hoey, Ms Garrett and Mr Dickson, smelt and observed of the Applicant:
- (a)was consistent with the professional paramedic experience of Mr Hoey, Ms Garrett and Mr Dickson of persons who had been administered methoxyflurane;
- (b)was consistent with the misuse and subsequent effect of methoxyflurane as stated in the expert evidence of Dr Robertson (in cross-examination) and Professor Ogden; and
- (c)was inconsistent with someone having a panic attack, namely being hypervigilant, sweating or hyperventilating as stated in the evidence (from her professional paramedic experience) of Ms Garrett and the expert evidence of Dr Robertson (in cross-examination), Professor Ogden and the (uncontested) expert evidence of Dr Bodnar.
- 29.Given the evidence of Mr Bakens, Mr Hoey, Ms Garrett and Mr Dickson in cross examination there is no basis to doubt their credit.
- 30.Whilst Mr Hoey and Ms Garrett did not directly observe the Applicant inhaling on the methoxyflurane whistle, given the above clear, cogent and strong evidence, there is a very strong circumstantial case that proves, on the balance of probabilities, the Applicant had misappropriated the methoxyflurane inhaler and that the Applicant had self-administered methoxyflurane on 2 June 2016.
The criticisms of Mr Berry's investigation lack merit
- 31.While some criticisms are made by the Applicant of some aspects of Mr Berry's investigation, those criticisms either:
- (a)have no merit; or
- (b)do not change or cast into doubt the strong, clear and cogent evidence of Mr Bakens, Mr Hoey, Ms Garett, Mr Dickson, Dr Robertson (in cross-examination), Professor Ogden and Dr Bodnar; or
- (c)cannot give rise to any finding of fact, as alleged by the Applicant in his opening, that Mr Berry formed a conclusion that the Applicant had engaged in the misconduct as alleged in Allegations 1 and 2 and then worked backwards and deliberately to exclude evidence to allow him to come to his conclusion.
- 32.Further, those criticisms are based upon the erroneous view that the Respondent had to and has to prove the Applicant's misconduct as if the Applicant was charged with a criminal offence and the Respondent had to and has to prove the allegations to the criminal standard of proof, being beyond a reasonable doubt.
- 33.In any event, despite the criticisms of Mr Berry's investigation, his conclusions were that Allegations 1, 2 and 3 were "...capable of substantiation." Mr Berry was not the final decision maker:
- (a)as to whether Allegations 1, 2 and 3 were in fact proven; and
- (b)if so, what the disciplinary penalty would be if, indeed, the Applicant was liable for disciplinary action.
- 34.Assistant Commissioner Hammond was the decision maker as to whether the Applicant was liable for disciplinary action. Assistant Commissioner Hammond gave his own independent consideration to the allegations after a consideration of all the material from Mr Berry and the Applicant's show cause responses.
- 35.Deputy Commissioner Emery was the decision maker as to the disciplinary penalty. Deputy Commissioner Emery gave his own independent consideration to the allegations and to the disciplinary penalty after a consideration of all the material before Assistant Commissioner Hammond and his own interviews with Mr Hoey and Ms Garrett.
The disciplinary process was procedurally fair
- 36.The disciplinary process adopted by the Respondent as set out in paragraphs 9 and 10 of these submissions was procedurally fair and gave the Applicant every reasonable opportunity to respond to the allegations, the evidence, the finding that Allegations 1, 2 and 3 were made out and to the proposed disciplinary penalty.
- 37.For these reasons the Respondent's case is that the Applicant had engaged in misconduct within the meaning of section 18A(1)(b) and (5) of the Ambulance Service Act 1991, that there was a sound or valid reason for the summary termination of the Applicant's employment and that the disciplinary procedure followed by the Respondent leading up to the termination of the Applicant's employment was one that was fair and reasonable.
- 38.In relation to the third allegation, the Respondent submits that this allegation is made out on the admissions made by the Applicant.
Mr Costello's Submissions in Reply
- In their reply submissions, the legal representatives for Mr Costello said it was never suggested that his case was that the Respondent must prove the misconduct beyond reasonable doubt. The relevant standard is the balance of probabilities but, given the seriousness of the matter, the principles from Briginshaw apply.
- The reply submission included the following points:
- the crucial questions in this case – the smell in the cubicle; Mr Costello's presentation in the aftermath; the evidence before Mr Berry; and, the evidence before the commission – were precisely the "…. inexact proofs, indefinite testimony or indirect inferences" which Dixon J warned about in Briginshaw (see extract at paragraph  above);
- the point of highlighting the shortcomings of Mr Berry’s investigation was not to suggest that QAS was obliged to investigate to the criminal standard. Rather, the point sought to be made was that, essentially, none of the surrounding facts that might have borne on the crucial questions were investigated. "The inferences drawn from the circumstantial evidence, to get to the finding of guilt, were made in what was essentially a factual vacuum. The inferences were unsafe.";
- Mr Hoey's and Ms Garrett's subjective perception that the smell of methoxyflurane in the toilet cubicle was "strong" is left meaningless absent an investigation of the things that could have borne on that subjective perception;
- Mr Hoey's and Ms Garrett's inferences drawn from Mr Costello's presentation were similarly unsafe. Neither had seen him upset before. Both inferred that he had used methoxyflurane by reference to symptoms that are not commonly associated with methoxyflurane use. The conclusion they both jumped to was wrong;
- an adequate investigation would have:
- sought to understand why Mr Dickson smelt methoxyflurane in locations far removed from the inhaler, or the alleged use of it, and why he observed symptoms in Mr Costello well after the weight of evidence suggests methoxyflurane symptoms would have abated; and
- sought to reconcile the evidence of Mr Young with that of the other witnesses;
- the Respondent's submissions misstated the evidence on a range of matters, including:
- Mr Costello did not say in cross-examination that he made "a decision" to put the inhaler in his cargo pants pocket. Rather, he said "It wasn't a clear decision. It was just an unconscious decision";
- Mr Gett did not agree that the smell of methoxyflurane was "much stronger" after someone used a Penthrox whistle. What he said was that it was "stronger";
- Mr Hoey did not agree he had a "normal" sense of smell. What he said was "I would assume it's normal";
- the Respondent's submissions about Mr Costello deliberately putting the Penthrox whistle in his pocket for his later use are entirely unsupported and unsustainable, and should be rejected;
- the Respondent's attempt to draw a distinction in the evidence of the experts between the "misuse" and "ordinary use" of methoxyflurane should also be rejected. There was no adequate evidence about the effects of methoxyflurane misuse;
- the Respondent's submissions which advanced a number of reasons why the "leaking inhaler" theory should be rejected, could be disposed of as follows:
- there was no evidence about whether the wick of the inhaler might have been oversaturated because the Respondent lost the inhaler, along with the opportunity to have it analysed;
- Mr Costello did not give any evidence about leakage of any liquid onto his clothes because any leakage would have been somewhere between zero and 6 ml and he "did not know to look for it, presuming it could even be necessarily seen by him". Although the Respondent was not strictly obliged to do so, it might reasonably have considered leakage or some other possibility in order to reconcile Mr Dickson's evidence that he smelt methoxyflurane in locations far removed from the inhaler and the alleged use of it;
- Mr Costello did not give any evidence about the inhaler being damaged because he did not know to even look for damage and, depending on the damage, might not have identified it;
- Mr Hammond conceded that leaking can occur, albeit that it is "rare";
- while the Respondent contended that a "plastic disc" at the base of a Penthrox methoxyflurane inhaler would have prevented leakage, there is no evidence of such a plastic disc being present in the inhaler in Mr Costello's case; and
- if methoxyflurane goes into the base, it can presumably leak out of the base.
- Mr Costello did not mention that he thought he had a panic attack until he was interviewed by Mr Berry because he had no expertise to make such a diagnosis. "What are relevant and probative are the symptoms he described: distress, shock, fear, crying and difficulty breathing, shortness of breath, heart beating fast, legs feeling weak, general feeling of shock and disbelief". Mr Costello should not be criticised because it took the Respondent two months to interview him;
- "There is no evidence that a vasovagal attack is 'the opposite of a panic attack'. In any event, Mr Costello denied, and denies, saying that he suffered a vasovagal attack.". The Respondent's submissions on this point are unsupported and unsustainable;
- the Respondent's submission that Mr Bakens' observations of Mr Costello as he exited the last cubicle in the staff toilet suggest that he had self-administered methoxyflurane, should not be accepted. Mr Bakens gave no evidence that he thought Mr Costello was affected by methoxyflurane and gave no evidence that he smelled it;
- further, given that both Mr Hoey and Ms Garrett looked in the staff toilets within a few minutes of Mr Bakens' observation of Mr Costello, but did not give any evidence they smelt methoxyflurane in the toilets, the submission that Mr Costello used methoxyflurane while there should be rejected; and
- the Respondent misstated the applicable principle regarding the onus of proof when it said (citing Wang) "in cases of dismissal arising from serious misconduct, the evidential onus of proof shifts from the Applicant to the Respondent…" What was said on page 458 of Wang is that "… in cases where the dismissal arises from misconduct the onus of proof shifts to the employer to establish that misconduct…".
- To reinforce the last point, Mr Costello's submissions quoted Wang at 463-4:
The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. (Mr Costello’s emphasis)
Notification to Health Ombudsman
- On 21 June 2016, while Mr Berry was still progressing his investigation, Mr Russell Bowles, Commissioner, Queensland Ambulance Service, wrote to the Office of the Health Ombudsman (OHO) to inform it of the incident involving Mr Costello. In his letter, Mr Bowles said:
- QAS had detected the misappropriation of controlled drugs by Officer Jay Costello;
- he was observed by nursing staff to stumble out of a toilet cubicle;
- a short time later he was found in another toilet block with a methoxyflurane device strapped securely around his wrist;
- he reportedly had an altered level of consciousness, was slow to respond with a high level of confusion, and there was a distinct smell of methoxyflurane present;
- these findings are highly suggestive of self-administration of methoxyflurane; and
- investigations are ongoing, however the matter has been referred to QPS and Officer Costello has been suspended from duty pending the outcome of the QAS and QPS investigations.
- Mr Costello argued that the language of this letter demonstrated that the Respondent had prejudged the matter before Mr Berry's investigation was complete. In addition, he complained he was never told that Mr Berry's investigation would also be used by QAS in dealing with its complaint about the incident under the Health Ombudsman Act 2013. Further, Mr Berry did not even know that his investigation would be used for this purpose. In light of the above, it was submitted that the Respondent’s behaviour visited further procedural unfairness upon Mr Costello.
- The submission that Mr Costello's "guilt" was predetermined is without substance. Mr Bowles notification to the OHO, as a statutory obligation, was an action taken independently of the investigation being undertaken by Mr Berry. While Mr Emery acknowledged that he would probably have sighted Mr Bowles letter to the OHO, he was clearly not familiar with its contents and readily agreed, under cross-examination, that some of the expressions used were less than accurate. His evidence, which I accept, was that he considered the matter involving Mr Costello solely on his reading of the material presented to him, as well as his interviews (in company with Miss Pereira) with Mr Hoey and Ms Garrett, respectively.
Consideration and Conclusion
- By virtue of the provisions of s 1023 of the Industrial Relations Act 2016, Mr Costello's argument that his dismissal was harsh, unjust or unreasonable is to be decided by reference to s 77 of the 1999 IR Act. Relevantly, that section provides:
77 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider—
- (a)whether the employee was notified of the reason for dismissal; and
- (b)whether the dismissal related to—
- (i)the operational requirements of the employer's undertaking, establishment or service; or
- (ii)the employee's conduct, capacity or performance; and
- (c)if the dismissal relates to the employee's conduct, capacity or performance—
- (i)whether the employee had been warned about the conduct, capacity or performance; or
- (ii)whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and
- (d)Any other matters the commission considers relevant.
- In the course of Mr Costello's closing submissions (paragraphs 7.30 to 7.32), it was submitted that he was not warned about the conduct to which the dismissal relates (see s 77(c)(i) above) nor given a "true opportunity" to respond to the allegation about the conduct to which the dismissal relates (see s 77(c)(ii)). He submitted that "[i]n respect of the alleged misappropriation and use of methoxyflurane, the Respondent proceeded straight to dismissal, despite this being the first and only instance of (alleged and denied) drug abuse".
- Accordingly, it was argued, because of these failures alone – as well as the fact the respondent pre-judged the result of what was, in any event, a fundamentally flawed investigation – Mr Costello's dismissal was harsh, unjust and unreasonable.
- I reject the argument that Mr Costello's dismissal was harsh, unjust and unreasonable because he was not "warned" nor given a "true opportunity" to respond to the allegations about the conduct to which the dismissal relates. Section 77(c) only requires the Commission to enquire whether a Respondent warned an employee or gave them an opportunity to respond before taking the step of terminating that employee's employment.
- Leaving aside, for the moment, Mr Costello's criticisms of Mr Berry's investigation and the alleged errors both Mr Hammond and Mr Emery fell into as a result of their consideration of it, I am satisfied (subject to one matter I discuss below) that Mr Costello was given the opportunity to respond to the allegations about the conduct to which his dismissal relates prior to his termination.
- The allegations were clearly set out in Mr Hammond's letter to Mr Costello dated 22 August 2016 and Mr Costello took the opportunity made available to him to fully respond to all three allegations in his detailed 10 page response dated 29 August 2016. In addition, Mr Costello not only responded to Mr Hammond’s proposed penalty, set out in his letter of 22 September 2016, but also took the opportunity to challenge a number of the reasons advanced by Mr Hammond as to why he found that each of the allegations had been substantiated, on the balance of probabilities. In my opinion, save for one matter, Mr Costello was given ample opportunity to respond to the allegations about the conduct to which his dismissal relates prior to his termination.
- The "one matter" about which Mr Costello might have some argument about denial of an opportunity to respond is in relation to Allegation 3. As would be apparent from Mr Costello's responses to Mr Hammond dated 29 August 2016 and 6 October 2016, he sought further and better particulars about his alleged failures to document discards before a decision was made in respect of the allegation. However, no additional particulars were supplied, apparently on the basis he had declined to view the eARFs during his interview with Mr Berry on 4 August 2016 and had admitted, at that time, that if the records were not complete then that was because he had not completed them.
- Although the contents of Allegation 3 formed part of the grounds and reasons for Mr Costello's termination, I do not regard the Respondent's failure to provide further and better particulars about his failure to document discards before his termination as a reason to find that his termination was harsh, unjust or unreasonable.
- This is because:
- he told Mr Berry that if particular entries were missing in his eARF's then that was because he did not make them;
- he acknowledged in his first response to Mr Hammond that his paperwork can at times be inefficient, only appearing to seek clarity about that part of the allegation which mentioned "in the majority of cases";
- both Mr Hammond and Mr Emery gave evidence that if Mr Costello's failure to document his discards properly had been the only issue before them, it would not have led to his termination; and
- Mr Costello conceded, in his closing submissions at paragraph 6.20, that "this allegation – even substantiated – ultimately amounts to little but a distraction".
- In light of the content of the last two points immediately above, I shall restrict my consideration of the merits of the Respondent's decision to terminate Mr Costello's employment to those matters contained in Allegations 1 and 2 only.
- In this regard, Mr Costello's legal representatives helpfully set out, on three separate occasions, the task confronting the Commission in deciding this matter, as follows:
- In the present case, the Respondent must establish, to this Honourable Commission's reasonable satisfaction, that Mr Costello was guilty of the alleged misconduct. The appropriate standard of proof is that described in Briginshaw. (paragraph 7.23 of closing submissions)
- The nub of this case is captured simply, as follows: if this Honourable Commission is not reasonably satisfied that Mr Costello was guilty of the alleged misconduct, then he was unfairly dismissed. (paragraph 7.24 of closing submissions)
- The matter ultimately distils to this: in order to find that the dismissal was fair, this Honourable Commission must be reasonably satisfied that Mr Costello did what he was accused to have done. (paragraph 1.4 of reply submissions)
Did Mr Costello misappropriate and use methoxyflurane?
- Having considered the matter at great length, I am satisfied that the Respondent has established, to my reasonable satisfaction, to the Briginshaw standard, as recorded in paragraph  above, that Mr Costello did misappropriate and use methoxyflurane in (at least) the toilet in which he was found by Mr Hoey and Ms Garrett on the evening of Thursday 2 June 2016. My reasons for arriving at that conclusion are set out in the paragraphs which follow.
- However, before turning to my reasons, it is necessary to record:
- I have accepted the Respondent's submissions (at paragraph 11 of its closing submissions) to the effect that when Mr Costello started his shift on 2 June 2016 he was a person who was under great anxiety due to the advice about their daughter’s condition given to him and his wife by their general practitioner on the previous day, as well as their (very difficult) conversation later that evening;
- I have accepted that, in appropriate circumstances, methoxyflurane can be administered to a patient as well as morphine (on the basis that this practice was acknowledged by most of the paramedics and other persons qualified to provide such opinion);
- I have not found it necessary to resolve the dispute concerning which of Mr Costello or Ms Wacker might have had the Penthrox whistle in their possession during the ambulance trip to the hospital (on the basis that this issue is largely irrelevant to subsequent events);
- I have accepted that Ms Wacker told Mr Dickson, on the night in question, that Mr Costello was red eyed and acting strangely – she assumed he had been crying – when they arrived at the hospital (on the basis that Mr Dickson is unlikely to have recorded such statement in his contemporaneous note if this is not what she told him);
- I have dealt with this matter on the premise that Mr Costello retrieved the whistle from the ambulance floor, as he alighted the vehicle, and placed it in his right cargo pants pocket (on the basis that this is contrary to all Infection Control requirements, an admission against self-interest and for the reasons set out in paragraphs  to  below);
- I have accepted that it is a common practice for paramedics to place drugs, particularly morphine and fentanyl, in their pockets to free their hands to perform other tasks and that some paramedics might also occasionally put Penthrox whistles in their pockets (on the basis that most of the paramedics who gave evidence agreed it was common practice to store drugs in their pockets if they needed to use their hands);
- I have accepted Mr Costello's evidence about the reason he started to climb into the back seat of Mr Dickson's vehicle as they were about to return to the hospital from Mudgeeraba (on the basis that Mr Young said he was going to the hospital as well and it was not unreasonable for Mr Costello to assume they would all travel in the one vehicle);
- I have not accepted the Respondent's submission to the effect that Mr Bakens’ evidence is suggestive of the fact that Mr Costello used methoxyflurane in the staff (first) toilets (on the basis that this submission is not supported by any direct evidence from Mr Bakens - or anyone else - about any methoxyflurane smell in that toilet area);
- I have not accepted the description of the place where Mr Costello was found as a "toilet cubicle", as it was frequently described in the submissions prepared by Mr Costello’s legal representatives (on the basis that this portrays he was found in a comparatively small space, when his evidence was that the toilet area "had quite a bit of space", with a toilet pedestal, hand basin and shower space. As such, I shall describe it as the "second toilet");
- I have accepted that bloodshot eyes are not a common symptom of methoxyflurane use (on the basis that the great majority of witnesses agreed that this was the case); and
- I have ignored those submissions which incorrectly record (or overstate) the evidence and/or its context, as well as any submission which constitutes what would be described as "evidence from the bar table" in a Hearing Room setting (see, for example, the Reply submissions of Mr Costello at paragraphs 4.26(b) and (c)).
- Notwithstanding that the Respondent's submissions to the effect that Mr Costello "secreted" the methoxyflurane inhaler in his cargo pants pocket for later self-use (see paragraphs 120 to 163 of closing submissions – summarised at paragraphs 13 to 21 in paragraph  above) are quite compelling, I have decided not to accept them. Instead, I have decided to proceed to consider the matter on the basis that Mr Costello placed the Penthrox inhaler in his pocket as he left the ambulance and then forgot about it.
- Although I have arrived at that decision, it is important to record that I found Mr Costello's evidence about this point to be contradictory and rather unconvincing. Firstly, he claimed under cross-examination that the decision to put the inhaler in his pocket "wasn't a clear decision. It was just an unconscious decision". Secondly, he told Mr Berry in his interview that he put it in his pocket so that he could give it to the patient if she needed it again. Thirdly, in his second response to Mr Hammond he said "[I] put the whistle in my pocket with the full intention of discarding it at the hospital".
- Fourthly, the CCTV footage showed him reaching deeply into his right cargo pants pocket on several occasions to retrieve, or return, other paraphernalia which was also in that pocket. On the last of those occasions, Mr Costello reached into his cargo pants pocket to retrieve the morphine syringe which he then placed on the stretcher for Mr Hoey to administer more morphine to the patient. In doing so, he could not have not noticed the fact that the Penthrox inhaler was still in his pocket.
- I have also not accepted Mr Costello's claim that the second toilet had a methoxyflurane smell in it because the inhaler had "recently been used" by the 86 your old patient. If Mr Costello's evidence is to be accepted, then the patient last used the methoxyflurane inhaler a few minutes before the ambulance arrived at the hospital. Given that he was in the triage area for more than 20 minutes before going to the first toilet (for some unknown duration), then in the second toilet for between 5 and 10 minutes, it is just nonsense to claim the inhaler had "recently been used" and that there would have been some residual smell still emanating from it.
- In addition, I have totally rejected the "leaking inhaler theory" advanced by Mr Costello for a number of reasons, as follows:
- no evidence was advanced by Mr Costello to suggest that the Penthrox inhaler had been damaged or had leaked into his pocket – only that he had stored it there;
- any methoxyflurane that might have been spilt onto the base of the Penthrox inhaler as it was being refilled, before the ambulance left the patient's residence, would have dissipated well before he was found, either upon the inhaler being turned upright for the patient to use or through the passing of time (well over an hour);
- Mr Costello, who drew the inhaler up for the second time, gave no evidence to the effect that the wick of the inhaler became oversaturated or that there was residual liquid on the base of the inhaler – indeed, the evidence was that he drew up a second 3 ml of methoxyflurane because the inhaler was empty and had ceased to be effective; and
- while Mr Hammond did state that it was "rare" for methoxyflurane to leak from an inhaler, he also said he had never had it happen in his time as a paramedic.
- The submission to the effect there was no evidence* that the Penthrox inhaler in Mr Costello's possession had a "plastic disc" in the base, which might have allowed fluid to leak (towards the end of the ninth dot point of paragraph ), was only advanced in reply submissions. Up to that point, the Penthrox inhaler provided to the Commission for its information, and use by the parties in their questioning of witnesses, had been accepted as being the same as that which Mr Costello was holding when he was found in the second toilet. The inhaler used in the proceedings (identified as "I" – 15) has a plastic disc which was built into its base during its manufacture. (* This is another example of the "beyond reasonable doubt" type of submission I made reference to in paragraph )
- As noted at paragraph 7.11 of Mr Costello's submissions (see above, in paragraph ), the Respondent's decision to terminate Mr Costello's employment ultimately rested on the evidence of Mr Hoey and Ms Garrett about two matters:
- Mr Costello's presentation after they found him in the second toilet; and
- their subjective perception of the strength of a methoxyflurane smell that they smelled in the second toilet.
- While Mr Costello strongly argued that, in both respects, the evidence was incomplete, inadequate and unsafe to rely upon – where each witness drew inferences from the circumstantial evidence that were unsafe and unfair – my consideration of the evidence leads me to reject that submission.
- Each of Mr Hoey (albeit with only six months experience as a Graduate Paramedic) and Ms Garrett (with six years' experience as an Advanced Care Paramedic) were familiar with the smell of methoxyflurane through the various stages of its life: from the time of opening the container and pouring it into a Penthrox whistle; while sitting idle awaiting use; while being used by a patient; and, in between its further uses by a patient. Their evidence was clear and unequivocal. The methoxyflurane smell in the toilet was strong and led them to both conclude, from their experience, that the Penthrox whistle had just been used.
- Importantly, the "strong" smell of methoxyflurane which both Mr Hoey and Ms Garrett smelled was in an area which Mr Costello described as being as big as the interview room in which he met Mr Berry, with three other persons present, and which had "quite a bit of space in there". Further, based on the evidence, Mr Costello would have been in the second toilet for only somewhere between 5 and 10 minutes before he was located by Mr Hoey and Ms Garrett. As such, given the size of the room and the strength of the methoxyflurane smell that both witnesses described, it is highly unlikely that it would have emanated from the Penthrox whistle itself – even if Mr Costello was holding it in his hands – and/or from any "leakage" from the whistle into Mr Costello’s pocket (about which there was no evidence – only speculation).
- Quite apart from the strength of the methoxyflurane smell being an indicator to both paramedics of its recent use, both Mr Hoey and Ms Garrett had other auditory and visual clues to rely upon to lead them to their joint belief that Mr Costello had been using the Penthrox inhaler shortly before they located him, as follows:
- Mr Hoey knocked on the second toilet door but did not receive a response;
- he waited a few seconds before unlocking the door;
- after he unlocked the door and opened it, Mr Costello did not acknowledge his presence for a few seconds "then he looked up and looked quite shocked";
- Mr Hoey observed that the strap of the Penthrox inhaler was around Mr Costello's wrist before he took the inhaler off Mr Costello;
- Mr Hoey observed that Mr Costello's eyes were glassy and bloodshot and that he appeared confused, slow to respond and slow to acknowledge what was going on around him. He also looked as if he had been crying or had been quite emotional;
- Ms Garrett observed that Mr Costello was either holding the strap of the inhaler or had it in his hand. He had bloodshot eyes, droopy eyelids, slurred speech and was moving slowly;
- when Mr Costello came out of the toilet, Mr Hoey observed that he "looked sort of beaten, like he was exhausted", and quite "spacy";
- as Ms Garrett and Mr Costello were walking away from the second toilet, he was talking to her about his daughter but was slurring his speech, speaking slowly and in a repetitive manner, and his demeanour was "flat";
- when she was speaking to Mr Costello outside the building, she observed that his attempted explanation of his daughter's illness was inconsistent and confusing to follow, as were his answers to questions she asked him; and
- the Officer Costello she spoke to in the triage area presented differently to the person she saw later "with speech, with eyes, facial expressions, behaviour, mobility".
- In my considered opinion, Mr Hoey and Ms Garrett were entitled to conclude – from what they saw, smelled and heard – that Mr Costello had inhaled methoxyflurane from the Penthrox inhaler while in the second toilet.
- In deciding to accept the evidence of Mr Hoey and Ms Garrett, I have not rejected Mr Costello's evidence that he became upset and distressed in the first toilet after viewing images of persons with neurofibromatosis on his mobile phone, and cried. Some of the evidence, especially that of Mr Hoey and Mr Dickson, supports this conclusion and helps explain the bloodshot eyes that Mr Bakens, Mr Hoey, Ms Garrett and Mr Dickson all gave evidence about.
- However, being upset, distressed and crying does not explain the other behaviours Mr Costello exhibited to Mr Hoey and Ms Garrett (and, later, Mr Dickson). Something more was involved.
- While Mr Costello claimed that elements of his behaviour, especially that observed by Mr Bakens, could be explained by the fact that he was having, or had just had, a panic attack, I totally reject that proposition as well as the submissions which advance and/or support it. This is for a number of reasons, as follows:
- Mr Dickson's contemporaneous note (which I accept as being an accurate account of what he saw and was told that night) states that Mr Costello told him he had had a vasovagal attack on standing from the first toilet. Mr Hoey's contemporaneous note (which I also accept as being an accurate account of what he saw and was told that night) states that Mr Bakens told him that Mr Costello said he just had a vasovagal episode when he enquired about the latter's well-being;
- Ms Garrett told Mr Emery and Miss Pereira that she would expect someone having a panic attack "to present more agitated, flighty – (with) more adrenaline", whereas Mr Costello presented quite differently;
- Mr Hoey told Mr Emery and Miss Pereira that while a panic attack can present in a range of symptoms, the person would typically be "in a heightened state – hyper – whereas JC was spaced out";
- Ms Garrett’s evidence about the symptoms she generally associated with a person experiencing a panic attack, which included: an increase in heart rate; an increase in breathing; shaking: hyperventilation; signs of anxiety; and, either fast talking or not talking at all;
- Prof Ogden's description of a panic attack as an episode of intense anxiety associated with physical sensations and hormonal responses of fear. The symptoms included: racing heart, shortness of breath, dizziness, trembling and muscle tension. There can be heightened vigilance, anxious and irrational thinking, trembling or shaking, sweating, flushes and dry mouth. An external observer may see the physical manifestations of a panic attack as wide-eyed alertness, shaking, restlessness and anxiety; and
- Dr Bognar's unchallenged evidence which was that the symptoms of a panic attack are in stark contrast to someone who has ingested methoxyflurane, namely: the individual is usually hypervigilant, pale, sweaty and hyperventilating.
- Although several of the symptoms of a panic attack as described above – shortness of breath and increased heartbeat – were described by Mr Costello as the symptoms he was feeling as he exited the first set of toilets in front of Mr Bakens (see final dot point in paragraph  above), I note that those symptoms were only described by Mr Costello in his reply affidavit after the Respondent filed its affidavits. In light of his shifting evidence on the reasons for going to the toilet and when the (alleged) panic attack came upon him,* as well as other inconsistencies in his explanations (see, for example, paragraphs  and  above), I am not prepared to accept his evidence about these symptoms. (*At one point it was when he started to stand from the first toilet after viewing images on his mobile phone of people with neurofibromatosis. In his second response to Mr Hammond he claimed – later withdrawn under cross-examination – that he started to experience the panic attack while in the triage area)
- The side-effects of someone having a panic attack, as described by the witnesses in paragraph , do not match the actions and behaviour of Mr Costello described by Mr Hoey and Ms Garrett in the immediate period after they located him in the second toilet. Equally, they do not match the actions and behaviour described by Mr Dickson.
- The more likely scenario is that Mr Costello did have a vasovagal episode in the first toilet, as he told Mr Dickson on the night (and appears to have told Mr Bakens as well), after having seen images of people with neurofibromatosis on his mobile phone. Further, having seen those images and being very distressed and emotional at what he saw, it is also likely that Mr Costello did look for another place to go, to regather himself, before returning to the triage area. The place that he went was the second toilet.
- Without determining the point one way or the other, it is also quite possible that it was only at that time that Mr Costello felt the Penthrox inhaler in his pants pocket, and took it out. In any event, whether he knew it was in his pocket beforehand or not, I do not accept his version of events from that point.
- My conclusion is that Mr Costello decided to use the Penthrox whistle to inhale some of the methoxyflurane in order to settle himself down before he returned to the triage area. As a qualified paramedic, he understood that methoxyflurane would reduce his anxiety and distress about the images he had seen on his mobile phone. Given the strength of the smell of methoxyflurane that both Mr Hoey and Ms Garrett smelt, it is also possible that he increased the dosage level by placing his finger over the diluter hole of the inhaler (see the evidence of Prof Ogden at the fifth dot point in paragraph  above).
- If Mr Costello did increase the concentration of the methoxyflurane he inhaled, that would help explain why the side-effects he exhibited – slurred speech, methoxyflurane smell, unsteady gait, bizarre and haphazard thought processes – remained apparent to Mr Dickson during his several discussions with Mr Costello and why he was still slurring his words (albeit less than earlier) while Mr Dickson was driving to Mudgeeraba. It might also help explain why he still appeared to be unsteady on his feet when he alighted Mr Dickson's vehicle after they arrived there.
- If Mr Costello did not increase the concentration by placing his finger over the diluter hole, Prof Ogden's evidence was still suggestive of the fact that the side-effects could last for "hours" depending upon the concentration and the dosage a person inhaled. In this respect, while a number of the paramedics who gave evidence were sceptical of the suggestion that the side-effects of methoxyflurane might last beyond 30 minutes, it is to be noted that Prof Ogden was not only the inaugural Medical Director of the New South Wales's Ambulance Service in 1994 but has worked in private emergency departments from 1995 to the present time. As such, it would be reasonable to expect that he has seen many patients who have inhaled methoxyflurane – including after they have been delivered to emergency departments by paramedics – and well-qualified to provide an informed opinion on the topic.
Was Mr Costello's termination harsh, unjust or unreasonable?
- Having decided that Mr Costello did misappropriate and use methoxyflurane in the second toilet, it is necessary for me to consider whether the other criticisms levelled at the Respondent about:
- the investigator's and decision makers' failure to take into account relevant evidence;
- the investigator and decision makers (wrongly) taking into account irrelevant matters when making their respective decisions;
- the loss of "crucial evidence", which meant it was never considered by the decision makers;
- flaws and other unfairness in the investigation and dismissal processes; and
- the harshness and personal and economic consequences for Mr Costello,
lead to a finding that the termination of Mr Costello's employment was harsh, unjust or unreasonable.
Relevant evidence not taken into account (see paragraph 7.14 of Mr Costello’s submissions, quoted in paragraph  above)
- In their submissions, Mr Costello's legal representatives were critical of the fact that Mr Berry's report did not mention Mr Young's evidence to the effect that Mr Costello was unsteady on his feet, his speech was not fast reacting as if he was under the influence of something and, in Mr Young's view, was "carrying more than methoxy on board". It was also said that the failure of Mr Berry and the decision makers (Mr Hammond and Mr Emery) to reconcile Mr Young's evidence with the balance of the evidence led them into error.
- The first point to be made about this submission, as highlighted by the Respondent at paragraph 33 of its closing submissions (see paragraph  above), is that Mr Berry only found, on the evidence then before him, that Allegations 1 and 2 were "capable of substantiation" – not that they had been substantiated. 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.
- The third point to be made is that Mr Hammond was the "middleman" (as I have described him above), with Mr Emery being the actual decision maker. The final point is that the full transcript of Mr Berry's interview with Mr Young was included in the material considered by Mr Emery – as was everything which Mr Costello had had to say about the whole matter. 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. Mr Emery thought, given his prior experience with methoxyflurane, that the critical evidence about whether Mr Costello had used methoxyflurane essentially rested with Mr Hoey and Ms Garrett – which was why he decided to speak to them himself about what they had seen and smelled.
- In terms of the submission about the investigator and decision makers' failure to consider that Ms Wacker told Mr Berry that Mr Costello was acting "normally" when he was speaking on the phone after the incident, it appears that this was several hours after he was found in the second toilet. Although Mr Berry did not mention this point in his report, Ms Wacker's "evidence" about this point was included in the transcript of her interview which was read by Mr Emery. Further, Mr Costello did not highlight it as an issue in either of his responses to Mr Hammond. In any event, given Mr Emery's knowledge of the side effects of methoxyflurane use, and how long they would usually last, I do not believe his alleged failure to consider this point, in the whole scheme of things, to be particularly important.
- Although it would obviously have been much better if Mr Berry had included Mr Dickson's contemporaneous note in his report – in which Ms Wacker's account of Mr Costello's presentation when they arrived at the hospital was recorded – I also do not think its omission had any effect on the merits of the ultimate decision reached by Mr Emery. As he said during his evidence, Ms Wacker's account of Mr Costello's behaviour was significantly different to that described by Mr Hoey and Ms Garrett after they found him in the second toilet.
- In addition, although Mr Emery did not make this point during his evidence, no one (including Ms Wacker) remotely suggested that Mr Costello was acting other than normally in his conversations with them in the triage area (i.e. Mr Hoey, Ms Wacker and Ms Garrett). Indeed, Ms Wacker said that he was helping her complete the paperwork and smiling at her. It was only after he was seen exiting the first toilets by Mr Bakens, and then observed and spoken to by Mr Hoey and Ms Garrett in, and after he left, the second toilet, that anyone raised concerns about Mr Costello's demeanour and behaviour.
Wrongly taking irrelevant matters into account (see paragraph 7.16 in Mr Costello’s submissions, quoted in paragraph  above)
- With respect to the authors, there is no evidence to support the submission that what are described as "irrelevant matters" were taken into account by Mr Emery when he made the decision to terminate Mr Costello's employment. The points raised in the submission are, to put it bluntly, simple conjecture presented as if they were fact.
- The first three matters raised in the submission relate to the factual background to the matter and provide the context against which Mr Berry concluded that the first and second allegations were capable of substantiation. However, as noted above, he was not the ultimate decision maker. The actual decision maker, Mr Emery, took the view, after reading all of the material, that the question he had to decide was "did Mr Costello use the methoxyflurane inhaler, or not?". That was why he decided to interview Mr Hoey and Ms Garrett. In that respect, it mattered little whether Mr Costello put the inhaler in his pocket contrary to proper clinical practice, whether his use of methoxyflurane and morphine in conjunction was an anomaly, or whether he had sufficient time to discard the inhaler. The evidence before Mr Emery was simply that Mr Costello had the methoxyflurane inhaler in his possession when he was found in the second toilet.
- Similarly, there is nothing to support the claim that the investigator and decision makers were influenced by their "concern" about Mr Costello's high administration and discard rates. In particular, there was no allegation put to Mr Costello which required him to explain his high administration and discard rates. As Mr Emery repeatedly said under cross-examination: the only allegation Mr Costello was asked to respond to, and the only matter he (Emery) considered, related to his (Costello's) failure to properly document his administration and discards in the eARF records. As Mr Emery said, any concern that QAS might have had about Mr Costello's high usage and discard rates would have been dealt with by Mr Hammond, or other managers, and not found its way to him.
Evidence which was lost or not secured by the investigator (see paragraph 7.18 of Mr Costello’s submissions, quoted in paragraph  above)
- While it obviously would have been better if the Penthrox inhaler had not been discarded into an ordinary waste bin by Mr Hoey, and not lost after it was retrieved several hours later by Mr Young and handed to Ms Lattimore at some later date, events did not unfold that way. As such, both parties – and the Commission – are left to deal with the matter without the benefit of any evidence which a forensic examination might have revealed.
- Given this circumstance, and noting that the matter is to be determined on a balance of probabilities basis – under the Briginshaw standard – and not on a beyond reasonable doubt basis, I shall simply take this point into account in my ultimate consideration of the various matters raised by Mr Costello in support of his argument that his termination, in all of the circumstances, was harsh, unjust or unreasonable.
- Notwithstanding that each of Dr Robertson and Prof Ogden (in one part of his evidence) opined that it would be "possible" for a person to have a blood test to establish whether methoxyflurane was present, that evidence was subjective and highly qualified. In that respect, Dr Robertson's evidence was more to the effect that such testing was theoretically possible, as opposed to being readily available. Similarly, Prof Ogden's evidence, considered in total – rather than via a single sentence – left me with the impression that while it should be possible to test for methoxyflurane, it would ultimately depend upon the sensitivity of the test as well as the time at which it might be conducted in relation to the consumption of methoxyflurane.
- Importantly, from my point of view, neither witness could state with any certainty that such test was available at the time of the hearing, let alone whether it would have been available on 2 June 2016. 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. The fact that they were still speculating about the potential for such a test to be conducted leads me to conclude that there was no readily available test which could have been requested.
- Accordingly, 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.
- In relation to the "lost opportunity" to interview Mr Bakens, I simply observe that while it might have been preferable for Mr Berry to have interviewed him before he completed his report, nothing really turns on the matter. Mr Costello was provided with a copy of Mr Bakens' contemporaneous note before he attended his interview with Mr Berry on 4 August 2016 and was able to address the matters contained within it, both at that time and in his subsequent responses to Mr Hammond's show cause letters.
Other unfairness in the investigation and dismissal process (see paragraph 7.20 of Mr Costello’s submissions, quoted in paragraph  above)
- The first three items under this heading can be dealt with quickly. The claim that the investigation was prejudged, because of the contents of Mr Bowles' letter to the Health Ombudsman, is without merit for the reasons advanced above. In addition – unless it is being suggested that Mr Costello's answers to Mr Berry (and Mr Hammond) would have been different had he known – I do not see the relevance of the submission that it was unfair to Mr Costello not to inform him that QAS proposed to use the outcome of the investigation, when finalised, to update the Health Ombudsman.
- I also fail to understand how it was unfair, or influenced the termination decision, that Mr Berry misstated the evidence on several occasions when he was questioning Mr Costello on 4 August 2016. Mr Costello denied using methoxyflurane and his responses to the questions asked of him by Mr Berry would not have changed whether Mr Berry framed his questions accurately or in the way he did.
- Given that Mr Costello acknowledged, in his reply submissions, that the matter concerning his documentation of discards "ultimately amounts to little but a distraction", I do not see the need to deal with this submission (which was contained in his earlier closing submissions).
- Despite Mr Costello's criticism of Mr Emery's decision to speak directly with Mr Hoey and Ms Garrett, I also do not accept the submission that Mr Emery's discussion with Ms Garrett "contaminated" her evidence. Ms Garrett, who was an impressive witness (as my notes, taken during the proceedings, confirm), did not give any evidence which added to, or detracted from, what she wrote in her contemporaneous note (of 2 June 2016) and what she accepted she told Mr Emery and Ms Pereira (on 25 October 2016).
- Importantly, from my perspective, she made it clear that she could not remember now whether Mr Costello was holding the Penthrox whistle itself or whether he was holding the string. In giving this response, it was very apparent that Mr Emery's question to her, about whether the strap of the inhaler was around Mr Costello's wrist or not, did not contaminate her response to him or what she said when giving her evidence.
- Finally, I have given no weight to the 13 "errors and omissions" in Mr Berry's report on which it was claimed the decision makers relied. A number of these items were included under other headings and their additional inclusion seems more to do with bolstering the number of criticisms of the report rather than adding serious arguments which require consideration.
- In any event, the submission that these "errors and omissions" influenced Mr Emery's ultimate decision has not been made out. As the Respondent argued at one point in its closing submissions, any allegation without some factual evidence to underpin it – of which there were many – "cannot give rise to any finding of fact".
The personal and economic consequences for Mr Costello (see paragraph 7.21 of Mr Costello’s submissions, quoted in paragraph  above)
- It is obvious that his termination by QAS will have certain personal and economic consequences for Mr Costello. He has lost his employment with the major employer of paramedics in the State of Queensland and his future ability to work in that capacity will, more likely than not, require him to turn to the private sector or, possibly, interstate.
- However, while relevant, the consequences for Mr Costello as a result of his loss of employment is but one matter which needs to be considered in deciding this Application. 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.
- At paragraph  above, I stated that I was satisfied that the Respondent had established to my reasonable satisfaction, to the Briginshaw standard, that Mr Costello did misappropriate and use methoxyflurane in (at least) the toilet in which he was found by Mr Hoey and Ms Garrett on the evening of Thursday, 2 June 2016.
- In that respect, while I have largely set out my own reasons for reaching that decision, I should also record that I have accepted the submissions of the Respondent in support of that contention – with the exception of those aspects which concern Mr Bakens' observations of Mr Costello being consistent with methoxyflurane use – which are summarised at paragraphs 22 to 30 of its closing submissions (recorded in paragraph  above).
- On my analysis of the evidence before Mr Emery, he was entitled to conclude, on the high balance of probabilities, that Mr Costello did misappropriate and use methoxyflurane in (at least) the second toilet. Having reached that conclusion, he was also entitled to decide – in the absence of any mitigating circumstances advanced by Mr Costello – that the appropriate penalty was the summary termination of Mr Costello's employment.
- Although Mr Costello challenges the fairness of that decision (see his arguments, and my consideration of them, at paragraphs  to  above), I am not persuaded, by either the evidence or the arguments presented on his behalf, that Mr Costello's termination was harsh, unjust or unreasonable.
- Rather, subject to the exceptions identified above - concerning the "secreting" of the methoxyflurane inhaler and what should be made of Mr Bakens' observations - I have been persuaded to accept the submissions of the Respondent in support of its arguments that there was a sound or valid reason - to the Briginshaw standard - for the summary termination of Mr Costello's employment and that the procedures it adopted which led to that decision were fair and reasonable.
- For the foregoing reasons, I dismiss the Application.
 Blows v Townsville City Council  QIRC 66 at  (citing Wang v Crestell Industries Pty Ltd (1997) 73 IR 454, 463 (citing Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914, 916).
 Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336.
 Wady v YMCA Canberra  IRCA 568.
- Published Case Name:
Jay Costello v State of Queensland (Department of Health - Queensland Ambulance Service) (No. 2)
- Shortened Case Name:
Costello v State of Queensland (Department of Health - Queensland Ambulance Service) (No. 2)
 QIRC 94
Member Bloomfield DP
25 Jun 2019