Cincovic v Simon Blackwood (Workers' Compensation Regulator)

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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:  

Cincovic v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 101

PARTIES:  

Cincovic, Goran
(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)
(Respondent)

CASE NO:

 WC/2014/309

PROCEEDING:

Appeal against decision of Simon Blackwood (Workers' Compensation Regulator)

DELIVERED ON:

 28 May 2015

HEARING DATE:

23 and 24 February 2015
10 April 2015 - Submissions Respondent
4 May 2015 - Submissions Appellant

MEMBER:

 Industrial Commissioner Fisher

ORDERS:

1.      The appeal is allowed.

2.      The decision of the Regulator is set aside.

3.      The Commission substitutes a new decision that the Appellant's application for compensation is one for acceptance.

4.      The Regulator is to pay the Appellant's costs of and incidental to the appeal
CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether the appellant's injury arose out of or in the course of his employment - whether employment was a significant contributing factor to the injury - whether the appellant is disentitled to compensation because his injury was caused by his serious and wilful misconduct - whether appellant was trained in the safe use of pallet jacks - whether inducted into the worksite - whether riding a pallet jack like a scooter was an accepted practice within the warehouse - whether workers who had ridden pallet jacks like a scooter had been disciplined and the nature of that discipline - whether crossing over the pedestrian walkway was hazardous - satisfied injury arose out of or in the course of employment - satisfied employment a significant contributing factor - finding not to have engaged in serious and wilful misconduct - s 130 of the Act does not apply - application for compensation one for acceptance.
CASES:

Workers' Compensation and Rehabilitation Act 2003, s 130.

Blenners Transport Pty Ltd Employees Workplace Agreement 2009

Australia Meat Holdings Pty Limited v Q-COMP 186 QGIG 527
R.E.C. Group Pty Ltd v Q-COMP (WC/2009/20) - Decision < Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25
APPEARANCES:

Mr J. Wiltshire, Counsel instructed by Seymour Furlong Lawyers for the Appellant.
Mr P.B. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator) for the Respondent.

Decision

  1. Goran Cincovic was injured at work on 30 March 2014.  Following an application for claim review by his employer, Mr Cincovic was denied workers' compensation by the Workers' Compensation Regulator on the grounds that he had engaged in serious and wilful misconduct.  Mr Cincovic appeals that decision.

[2]     This appeal considers three issues:

(i)whether Mr Cincovic's injury arose out of or in the course of his employment;

(ii)whether employment was a significant contributing factor to the injury; and

(iii)whether Mr Cincovic is disentitled to compensation because his injury was caused by his serious and wilful misconduct.

Brief Facts

  1. At the time of the incident, Mr Cincovic was employed as a truck driver with Blenners Transport based at Darra.  Mr Cincovic worked Saturdays and Sundays.  He had previously worked full-time for Blenners as a truck driver both at its previous depot at Rocklea and later when it shifted…

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Details
Case
[2015] QIRC 101
Decision Date

CaseChat Overview and Summary

In the case of Cincovic v Simon Blackwood (Workers' Compensation Regulator), the appellant, Mr Cincovic, contested the Workers' Compensation Regulator's decision to deny his claim for workers' compensation following an injury sustained during his employment. The central issues revolved around whether Mr Cincovic's injury arose out of or in the course of his employment, whether his employment was a significant contributing factor to the injury, and if his actions constituted serious and wilful misconduct that would disentitle him to compensation under the Workers' Compensation and Rehabilitation Act 2003.

The court examined whether Mr Cincovic's actions in riding a pallet jack like a scooter, which resulted in his injury, were part of his employment duties or constituted a frolic of his own. It was established that Mr Cincovic was returning the pallet jack to the truck as part of his job, despite the unconventional method he chose. The court found that his actions, although not approved, were related to his employment duties, thus satisfying the requirement that the injury arose out of or in the course of employment. Furthermore, the court determined that Mr Cincovic's employment was a significant contributing factor to the injury, given his role in returning the pallet jack and the lack of adequate training or induction regarding safe practices.

Regarding the question of serious and wilful misconduct, the court held that Mr Cincovic's actions did not meet the threshold for such misconduct. The evidence indicated that riding the pallet jack like a scooter was an occasional occurrence in the workplace and was not viewed as a serious safety issue by the employer. The court found that Mr Cincovic's actions, while deliberate, were not done with a consciousness of wrongdoing or reckless disregard for safety. Therefore, the court concluded that Mr Cincovic's injuries were not caused by his serious and wilful misconduct, and section 130(1) of the Act did not apply.

The Commission allowed the appeal, set aside the Regulator's decision, and substituted a new decision that Mr Cincovic's application for compensation was one for acceptance. Additionally, the Regulator was ordered to pay Mr Cincovic's costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Regulator is set aside.

3. The Commission substitutes a new decision that the Appellant's application for compensation is one for acceptance.

4. The Regulator is to pay the Appellant's costs of and incidental to the appeal

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the decision R.E.C. Group Pty Ltd v Q-COMP,[2] Asbury C drew on the judgment of Derrington J in the case of Boral Resources (Queensland) Pty Ltd v Pyke referred to by President Hall in Australia Meat Holdings. She said that although Derrington J was considering a case concerning an insurance contract, he provided some useful guidance on the construction of the essential phrase "serious or wilful misconduct". He observed that because it is a substantial detriment for an employee to be deprived of the relief provided to employees generally by the section, appropriate caution must be exercised in its construction.[2] R.E.C. Group Pty Ltd v Q-COMP (WC/2009/20) - Decision <>In considering the term "serious misconduct", His Honour Derrington J held that it must be something significantly worse than negligence and "must imply the need for such a degree of gravity as to make it fair and just that the employee should be deprived of the benefit of the relief." Further, it was held that:"In order to be serious, the misconduct, although it may be so, need not be wilful in the sense of demanding recognition of its wrongfulness or deliberately reckless disregard of the risks ...".and"… although the standard is objective, this does not mean that factors personal to the (employee) should be ignored."In relation to the term "wilful misconduct" Derrington J held:"First it may amount to intentionally causing the loss. Secondly … it may alternatively mean an intentional or deliberately reckless course of misconduct with knowledge that it is dangerous and wrong, that, is an unreasonable perseverance in it with a recognition of its wrongfulness and a reckless disregard of any risks...". [3][3] Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 42, 43.ConclusionWas Mr Cincovic engaged in a frolic of his own?: The Regulator submits that Mr Cincovic's injury did not arise out of or in the course of his employment because he made a deliberate decision to engage in a frolic of his own as part of the banter and horseplay that was occurring with Mr Starling on 30 March 2014. This frolic broke the chain of connection between his injury and his work duties. The Appellant rejected this submission arguing that Mr Cincovic was engaged in performing his job by returning the pallet jack to the truck as required by his employer. Further, it was Mr Starling who engaged in horseplay or skylarking by kicking the tine of the pallet jack.The evidence establishes that on returning to his truck after submitting his paperwork and going to the toilet, Mr Cincovic found his pallet jack had been removed to the dry area of the warehouse. He went to retrieve it to return it to the truck ready for use by the next driver. As he was a little tired he decided to ride the pallet jack back to the truck. This was a method by which he could more quickly return the pallet jack to the truck so that he could cease work for the day. By returning the pallet jack to the truck ready for use by the next driver, Mr Cincovic was performing his duties. I am not satisfied that Mr Cincovic understood at the time that his means of returning it was not approved or unsafe. It was in fact both of these things but nonetheless, it was a practice that happened occasionally. Pallet jacks are heavy pieces of equipment and do not have a braking mechanism. I accept that they are not designed to be ridden. However, the CCTV footage shows that Mr Cincovic had control of the pallet jack and was not riding it fast or without care. That he turned his head to check the pedestrian walkway was clear before crossing over it is indicative of this. He was slowing down as he reached the ramp and could not be expected to know that Mr Starling had chased after him. Except for Mr Starling's intervention he would have reached the truck without incident. I am not satisfied that Mr Cincovic and Mr Starling were engaging in banter. The evidence only establishes with any degree of certainty that Mr Starling made a remark to Mr Cincovic as he was passing. The evidence does not support a positive conclusion that Mr Cincovic was engaged in banter with Mr Starling. Mr Cincovic was not racing anyone or riding it for fun. As a result I do not consider that by riding the pallet jack Mr Cincovic was engaging in banter and horseplay with Mr Starling. In the circumstances I am satisfied they injury arose out of or in the course of his employment.Was employment a significant contributing factor to Mr Cincovic's injury?: The Regulator's submissions on this question rely in part on the Commission accepting that Mr Cincovic had engaged in a frolic of his own. However, the Regulator also submits that the real and effective cause of the injury was Mr Cincovic's deliberate decision to be lazy and use the pallet jack in an unauthorised and incorrect manner. Had Mr Cincovic been undertaking the duties of his position as instructed he would not have suffered the injury.I have previously found that Mr Cincovic was engaged in performing his duties, albeit in an inappropriate way, by returning the pallet jack to the truck. I have also previously accepted that Mr Cincovic was unaware that riding the pallet jack like a scooter was unsafe or unapproved. He had not been adequately inducted or trained especially on his return to work in his second period of employment.I am satisfied employment was a significant contributing factor to Mr Cincovic's injury.Did Mr Cincovic engage in serious and wilful misconduct?: Section 130 of the Workers' Compensation and Rehabilitation Act 2003 disentitles a worker to compensation when the worker sustains an injury that is caused by the worker's serious and wilful misconduct except in two specific circumstances. Neither of the two circumstances apply in this case. Therefore the Commission is required to consider whether Mr Cincovic engaged in serious and wilful misconduct.The case law cited above establishes that the conduct must be both "serious" and "wilful" to disentitle a worker to compensation.On the analysis above I am satisfied that while Blenners did not condone riding the pallet jack like a scooter and viewed it as a safety risk, it happened in the workplace and was not viewed as a serious safety issue. This is borne out by the limited amount of training for pallet jacks, especially in relation to unsafe practices; the absence of signs or warnings as well as the lack of reinforcement in tool box meetings. Perhaps it was treated as a risk that went without saying but workplace health and safety training and training in safe work procedures are designed to ensure that workers are aware of risks and both safe and unsafe practices to minimise harm to themselves and others.President Hall said in Australian Meat Holdings that the seriousness of misconduct is to be evaluated having regard to whether the conduct would be attended by the risk of non-trivial injury. Mr Cincovic's training on manual pallet jacks was cursory and neither it nor the list of "Do" and "Don'ts" touched on the issue. Given Mr Cincovic was not adequately trained or inducted, I am not satisfied that he was apprised of the dangers of his conduct. Further, Mr Cincovic's evidence is that he was not alert to the possibility that it carried any substantial risk of injury to himself or others. He did not see anyone around him and there were no other pieces of equipment near him. He was intent on keeping the pallet jack under control.I have found that riding the pallet jack did happen from time to time and the evidence is that were the practice to occur it would be met with a verbal reprimand or warning. It was not an offence that would lead to summary dismissal nor was it one that attracted a first and final written warning. Disciplinary action of the type indicated by Blenners' management shows that riding a pallet jack does not constitute serious misconduct. Derrington J in Boral Resources held serious misconduct must be more serious than that which would justify immediate dismissal. Given the likely disciplinary penalties that would be imposed for riding a pallet jack like a scooter I am unable to be satisfied that such behaviour constituted serious misconduct. At worst it was misconduct."Wilful misconduct" has been determined to be misconduct engaged in deliberately and with a consciousness of wrongdoing or a deliberately reckless course of misconduct with knowledge that it is dangerous and wrong. Although he deliberately rode the pallet jack, I am not satisfied that Mr Cincovic knew and understood that riding a pallet jack like a scooter was wrong. I have found that other workers engaged in the behaviour occasionally, although it was not an authorised practice. He also did not have any understanding that his conduct was inherently unsafe and had no knowledge of the possible dangers of his conduct or factors that might enlarge it. He could not reasonably have appreciated the possibility of Mr Starling chasing after him and that he was going to kick the pallet jack. He had looked behind him to ensure that no one or other equipment was close by before crossing the pedestrian walkway and continuing on to his truck. His conduct could not be described as reckless.For these reasons, I am not satisfied that the act of riding the pallet jack like a scooter constituted wilful misconduct.In light of these findings it follows that Mr Cincovic's injuries were not caused by his serious and wilful misconduct. Accordingly, s 130(1) of the Act does not apply.OrdersThe Commission Orders as follows:1. The appeal is allowed.2. The decision of the Regulator is set aside.3. The Commission substitutes a new decision that the Appellant's application for compensation is one for acceptance.4. The Regulator is to pay the Appellant's costs of and incidental to the appeal

Ratio Decidendi

Legal Principle Established

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