Gold Coast Airport Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 60
•27 March 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Gold Coast Airport Pty Ltd v Simon Blackwood | ||
| (Workers' Compensation Regulator) [2014] QIRC 060 | |||
| PARTIES: | Gold Coast Airport Pty Ltd | ||
| (Appellant) | |||
| v | |||
| Simon Blackwood (Workers' Compensation Regulator) | |||
| (Respondent) | |||
| CASE NO: | WC/2013/153 | ||
| PROCEEDING: | Appeal to Industrial Commission against a decision | ||
| of the Regulator | |||
| DELIVERED ON: | 27 March 2014 | ||
| HEARING DATE: | 13 September 2013 | ||
| MEMBER: | Deputy President O'Connor | ||
| ORDERS: |
|
dated 16 April 2013 be set aside;
2. That a new decision rejecting the application for compensation be substituted in lieu of the respondent's original decision; and
3. That the respondent pay the appellant's costs of and incidental to this appeal, to be agreed, or failing agreement, to be the subject of a further application to the Commission.
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF THE REGULATOR - Appeal by employer aggrieved by decision of the Regulator - Where the appellant did not dispute that the worker had sustained a "personal injury" which arose out of or in the course of his employment with the appellant, nor that employment was a significant contributing factor - Whether the worker's claim for compensation should properly be rejected by the operation of s 130 of the Workers' Compensation and Rehabilitation Act 2003 - Whether the worker's injury was caused by the worker's "serious and |
| wilful misconduct" - Where the worker was | |
| employed as a car park attendant - Where the personal injury was sustained in the course of a physical altercation with a man who became agitated when the boom gate prevented him from exiting the car park after exceeding the time limit for entry and exit without charge - Where the appellant had in a place a number of policy and other documents which required employees to consider their own health and safety and that of others whilst carrying out their duties, and required them not to engage in dangerous conduct - Where the worker's evidence showed that he was aware of what the appellant required of him in that regard through exposure to relevant documents and training | |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 |
| (Qld) ss 11, 32, 130 | |
| Australia Meat Holdings Pty Ltd v Q-COMP (2007) 186 QGIG 527 | |
| Boral Resources (Queensland) Pty Ltd v Pyke | |
| (1992) 2 Qd R 25 Briginshaw v Briginshaw (1938) 60 CLR 336 | |
| Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd | |
| (1992) 110 ALR 449 | |
| APPEARANCES: | Mr J W Merrell, instructed by Livingstones, for the appellant. Mr A B Johnson, for the respondent. |
| Decision |
[1] This is an appeal by Gold Coast Airport Pty Ltd ("the appellant") against a review decision of the Workers' Compensation Regulator ("the respondent") dated 16 April 2013. That decision accepted Mr Bradley Burke's application for compensation, finding that he had sustained an "injury" within the meaning of that term in s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
Background
[2] The appellant is a wholly-owned subsidiary of Queensland Airports Ltd ("QAL"), which leases the Gold Coast Airport from the Commonwealth and operates the business of providing airport services through the Gold Coast Airport terminal, including the provision of car parking services.
[3] Mr Burke commenced employment with the appellant in July 2005 as a car park attendant, initially as a casual employee and later on a permanent part-time basis. His position title was changed to "Ground Transport Attendant" but his duties remained the same.
[4] The position description for a Ground Transport Attendant sets out what were, at the material time, his key duties and responsibilities. Amongst other things, he was required to:
"● Monitor entry and exit toll gates and clear ticket jams, report and log
maintenance faults as they occur… ● Assist customers to use the Automated Pay Stations … ● Respond professionally to queries and complaints in relation to the car park operation via phone and intercom …"[1] [1]
[5] QAL's Code of Conduct provides:
"All QAL staff are expected to treat people fairly, honestly, responsibly and
compassionately, and with proper regard for the rights of others.
This means:
Always being responsive, courteous and truthful when communication and dealing with other staff members and stakeholders.
…
Employees have a responsibility to act in the best interests of QAL, to uphold its Mission and Vision (To be created) and not engage in behaviour that brings the organisation into disrepute.
This means:
Always ensuring appropriate professional relationships are maintained with stakeholders and other staff.
…
Employees should seek to achieve high standards and have a responsibility to perform their duties to the best of their ability and in a professional manner.
This means:
Always ensuring proper care and attention is given to all aspects of your work.
Actively considering the health and safety of yourself and others while carrying out your duties
…
Employees should uphold the laws and regulations of the State and
Commonwealth and policies and procedures of QAL.
This means:
…
Not engaging in criminal, illegal or dangerous behaviour while in the
employment of QAL, or knowingly assisting another person to engage in such
2
activity."
[6] The QAL Workplace Health and Safety policy relevantly provides:
"Queensland Airport Limited [and] employees … have a duty of care
including; the responsibility to work safely, to take all reasonable care for their
own health and safety, and to consider the health and safety of other people
3
who may be affected by their actions."
The issue for determination
[7] There is no dispute between the parties that, at the material time, Mr Burke:
(a) was a "worker" within the meaning of s 11 of the Act; and (b) suffered a "personal injury" which arouse out of, or in the course of, his employment with the appellant and that his employment was a significant contributing factor to that personal injury, for the purposes of s 32(1) of the Act.
[8] The sole issue for determination by the Commission, therefore, is whether Mr Burke's claim for compensation should properly be rejected by the operation of s 130 of the Act, which provides:
"130 Injuries caused by misconduct
(1) Compensation is payable for an injury sustained by a worker that is caused by the worker's serious and wilful misconduct only if—
(a) the injury results in death; or (b)
the insurer considers that the injury could result a DPI of 50% or more.
(2) However, compensation is not payable if the injury could result in a DPI of 50% or more arising from—
(a) a psychiatric or psychological injury; or (b)
combining a psychiatric or psychological injury and another injury.
(3) If the insurer and the worker can not agree that the worker's injury could result in a DPI of 50% or more—
(a)
the degree of permanent impairment that could be sustained by the worker may be decided only by a medical assessment tribunal; and
(b)
the insurer must refer the question of the degree of permanent impairment to a tribunal for decision.
(4) In this section— serious and wilful misconduct of a worker does not include conduct engaged in at the express or implied direction of the worker's employer."
Relevant authorities
[9] In dealing with the construction of the phrase "serious and wilful misconduct" Hall P
4
in Australia Meat Holdings Pty Ltd v Q-COMP wrote: "This Court is concerned only with the issue whether the 'wilful misconduct' upon which Mr Richardson chose to engage is properly characterised as 'serious misconduct'. In embarking upon that task, the Court is assisted by the circumstance that the parties are ad idem that in the expression 'serious and wilful misconduct' the word 'and' is used in a conjunctive and not disjunctive sense. It is also conceded by Counsel for the Appellant that the language precludes any argument that 'wilful misconduct' is always 'serious misconduct'. Counsel maintain, in my view correctly, that the circumstance that misconduct is 'wilful' may be taken into account in weighing its 'seriousness'.
The expression 'serious and wilful misconduct' and the rival expression 'serious or wilful misconduct' have been much considered in employment- related litigation and in particular in connection with disentitlement to workers' compensation benefits for over a hundred years, see e.g. Johnson v Marshall, Sons and Co Ltd [1906] AC 409. Each of the words 'serious', 'wilful' and 'misconduct' is capable of bearing different shades of meaning,
Australasian Meat Industry Employees Union v Australian Meat Holdings Pty
Ltd [1999] FCA 96 at paragraph 87 per Dowsett J. In the present context, notwithstanding that the adjective 'serious' is used to describe the misconduct and is not used with reference to consequences of the misconduct, it seems to be settled that the seriousness of the misconduct is to be evaluated having regard to whether the conduct would be attended by the risk of non-trivial injury, see Johnson v Marshall, Sons and Co Ltd, ibid, at 416. I do not, however, accept the proposition contended for by the Industrial Magistrate in reliance upon the decision of Green CJ in Hills v Brambles Holdings Ltd (1987) 4 ANZ Insurance Cases 60-785, that for conduct to amount to serious and wilful misconduct, it must 'be such as to give rise to immediate risk of serious injury.'. I respectfully adopt the view of Finn J in Comcare v Calipari [2001] FCA 1534 at paragraph 4, where His Honour said of the quoted passage:
'This usage is unexceptional if it is understood as signifying no more than the converse of trivial injury. It was intended to signify more than that and apostolate a positive requirement, it can find no justification in the terms of the statute itself, nor in the general run of authoritive expositions of the formula.'.
Neither do I accept that a claimant worker is disentitled to workers' compensation
benefits only where the evidence shows that the worker had 'knowledge of the risk
of injury and, in the light of that knowledge, proceeded without regard to the risk',
see Sawle v Macadamia Processing Co Pty Ltd (1999) 18 NSWCCR 109 at
paragraph 24 per O'Meally J. The requirement that the misconduct must be 'wilful'
adequately protects injured workers who might otherwise lose everything because
of a momentary lapse into carelessness. It is a statutory gloss to go beyond
weighing wilful risk taking in the balance and to confine s. 130 to such cases. For
the same reason, I also reject the proposition of Green CJ in Hills v Brambles
Holding Ltd (1987) 4 ANZ Insurances Cases 60-785, that the defence is available
only where the misconduct is 'accompanied by an appreciation of the risk which is
involved in it.'. The preferable approach is that of Derrington J in Boral Resources
(QLD) Pty Ltd v Pyke [1992] QdR 25 at 43, that the 'necessary knowledge and
appreciation need not descend to particularity' and that an 'appreciation of possible
danger or of factors which might enlarge it' may be sufficient to justify
characterisation of the 'wilful misconduct' as 'serious'. Beyond those observations,
it seems to me that the relatively simple language of s. 130 should not be overlayed
with gloss and the question whether 'misconduct' is to be characterised as 'serious'
should be dealt with as a jury question, compare Boral Resources (QLD) Pty Ltd v
5
Pyke [1992] 2QdR 25 at 33 per Thomas J."
[10] In Boral Resources (Queensland) Pty Ltd v Pyke[6] Derrington J, in dealing with the definition of "wilful misconduct", wrote:
[6]
"First it may amount to intentionally causing the loss. Secondly echoing a
standard which is well known in the common law of insurance, 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
7
disregard of any risks"
Applicability of the test in Briginshaw
[11] Counsel for the respondent submitted that, having regard to the serious nature of the
allegations against Mr Burke, namely, a finding that under s 130 of the Act he was
guilty of serious and wilful misconduct, the Commission should, in determining the
standard of proof it should apply, adopt the test as enunciated in the High Court
8
decision in Briginshaw v Briginshaw.
[12] As Bennett and Broe explain, Briginshaw is commonly asserted to require stronger
and more reliable evidence to be put forward to prove the facts in issue where the
9
nature and circumstances of the allegations are more serious and grave.
[13] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[10] Mason CJ, Brennan, Deane and Gaudron JJ observed:
"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
'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
11
the answer to the question whether the issue has been proved'."
[10]
[14] It is worth noting that, in Briginshaw, Dixon J expressed the view that before accepting the truth of evidence of a particular allegation, the tribunal should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted. As his Honour observed, the common law has not
developed a third standard of persuasion; it acknowledges only the two standards –
the criminal standard of beyond reasonable doubt and the civil standard of balance
of probabilities or reasonable satisfaction.[15] I am not of the opinion that the Briginshaw test should, in the present case, be applied.
The evidence
[16] Mr Burke was dismissed by the appellant on 29 January 2013. In the termination letter under the hand of "Chief Operating Officer" Paul Donovan, Mr Donovan found that Mr Burke was liable to disciplinary action on the grounds that he had:
"● Been guilty of serious misconduct. ● Contravened, without reasonable excuse, provisions of the Queensland
Airports Code of Conduct● Breached the common law provisions of your employment contract to
not act in a manner that will put yourself and or the organisation at risk●
Performed duties in a manner which contravenes the Work Health and Safety Act 2011 by exposing yourself to risk and physical harm through this altercation with a customer.
● Exposed Gold Coast Airport to reputational risk as a result of your conduct, which took place in a public place and on Gold Coast Airport 12
property."
[17] On 5 February 2014 Mr Burke filed an Application for Unfair Dismissal Remedy in Fair Work Australia. The application stated that the dismissal was unfair for the following reasons:
"1. I was removing the man from obstructing traffic and damaging exit gate. 2. Keeping him away from the public (elderly women at exit gate). 3. No protocol in place to say you can't stop people from being a public 13
nuisance."
[18] Counsel for the appellant submitted that Mr Burke's conduct amounted to "serious and wilful misconduct" having regard to the following three factors:
(a) he had no lawful authority to restrain any customer to the car park and such was not a requirement of his position; (b) he had to actively considered the health and safety of himself and others while carrying out his duties; and (c) he was not to engage in dangerous behaviour while employed by the appellant.
[19] It was the breach of these three obligations by Mr Burke which, it was submitted, amounted to the serious and wilful misconduct. The conduct engaged in by Mr Burke was said to be wilful because it was engaged in "voluntarily or intentionally".
[20] The Commission had the advantage of viewing the CCTV footage of the incident on 5 January 2013. What is clear from the CCTV footage is that Mr Brett Buchanan was in a highly agitated state, apparently having discovered that he could not exit the car park because he had exceeded the ten minute limit. The Gold Coast Airport operates a system whereby one may enter and exit the car park without charge if one spends no more than ten minutes within the car park.
[21] The footage shows that Mr Buchanan parked his car at toll booth 3 and was unable to exit. He left his car, walked to toll booth 2 and appeared to use the intercom. Mr Buchanan then picked up a "traffic cone", walked towards toll booth 1, and threw the cone at the boom gate, damaging it somewhat. It was at this point that Mr Burke and his co-worker, Ms Sheree Lynch, exited the control booth. Mr Burke ran towards Mr Buchanan and placed him in a headlock. A struggle ensued with Mr Buchanan attempting to free himself. Mr Burke dragged Mr Buchanan towards the control booth and held him in a fenced-off area in front of the control booth.
[22] The CCTV footage shows that, until the Australian Federal Police arrived at the scene, a series of verbal and physical altercations between Mr Burke and Mr Buchanan took place. On one occasion, Mr Burke physically restrained Mr Buchanan and dragged him in front of the toll booths, close to a car exiting the car park from toll booth 2.
[23] Counsel for the respondent submitted that the appellant had failed to prove that Mr
Burke knew "that if there was an aggressive customer or a customer that posed any
threat to security, that the procedure he was to adopt was to call the Australian
Federal Police". Whilst I accept that the Standard Operating Procedures for dealing
with Aggressive Customer Management came into effect after the 5 January 2013
14
incident, I am also of the view that Mr Burke was aware what action he should take when confronted with a disruptive or aggressive customer, for the reasons set
out below.[24] As was noted above, Mr Burke in justifying his conduct suggested that he was attempting to keep Mr Buchanan away from an elderly woman who was standing at boom gate 2. However, what is evident from the CCTV footage is that the "elderly woman" was walking away from the gate prior to Mr Buchanan throwing the "traffic cone" at the boom gate at toll booth 1. The CCTV footage does not, in my view, support Mr Burke's assertion.
[25] In cross-examination, Mr Burke accepted that he had been told by Ms Alexandra
Cross, the appellant's "Manager of Ground Transport and Airport Services", that he
was to call the Australian Federal Police if there was an aggressive customer or
15
some threat to security.
[26] Mr Burke also conceded in cross-examination that he said to Ms Lynch "Go and call
16
the Australian Federal Police."
[27] In the Details of Incident Form dated 5 January 2013 Mr Burke recorded the following:
"I Brad Burke, ran out and said the A.F.P. were coming and then had to restrain him from getting away, till the A.F.P arrived. He was given a warning and paid $5.00."
[28] In cross-examination, Counsel for the appellant put the following to Mr Burke:
"So, am I correct in suggesting this. That you intentionally left the hut to go
and restrain Mr Buchanan? --- That's correct.
17
That was your voluntary act? --- Exactly."
[29] The evidence of Mr Burke, which I accept, confirms that he:
(a) was aware of QAL's Code of Conduct for employees; (b) participated in, and completed, an online training module in relation to 18
the appellant's Workplace Health and Safety Policy;
19
(c) undertook online training with the assistance of his supervisor; (d)
was aware of the standard of conduct required of him by the appellant, including the requirements that he:
20
(i) was not to engage in dangerous behaviour;
(ii) was to take reasonable care for his own safety and the safety of
21
others; and 22
(e) was aware that he was not engaged as a security officer.
[30] I have formed the view that Mr Burke had knowledge of the relevant risks associated with his conduct, and deliberately undertook them. He proceeded, with deliberate disregard for whether there was a risk or not. As a consequence, his conduct was wilful because it was engaged in "voluntarily or intentionally".
[31] Mr Burke's evidence that Mr Buchanan was "getting more aggressive on the intercom", was "getting pretty abusive and more aggressive" and "started erratic behaviour" would have alerted Mr Burke to the potential danger that he might face should he confront Mr Buchanan.
[32] The evidence of Ms Cross regarding the automation of the toll booths suggested that it was designed to provide some separation between Ground Transport Attendants and members of the public.
[33] It is accepted that Mr Burke had no lawful authority to physically restrain any customer in the car park nor was it a condition or a requirement of his employment.
[34] The Code of Conduct, which Mr Burke accepted applied to his employment as a Ground Transport Attendant, required him to actively consider his own health and safety and that of others while carrying out his duties, and not to engage in dangerous behaviour while employed by the appellant. He did neither of those things.
[35] As Hall P observed in Australia Meat Holdings, the relatively simple language of s
130 should not be overlaid with gloss, and the question of whether misconduct is
23
"serious" should be dealt with and resolved as a question of fact.
[36] The adjective "serious" is used to describe the misconduct and is not used with reference to consequences of the misconduct. It seems to be settled that the seriousness of the misconduct is to be evaluated having regard to whether the conduct would be attended by the risk of non-trivial injury. Mr Burke's conduct in confronting Mr Buchanan, by restraining him as he did, was such that his conduct would be attended by the risk of a non-trivial injury.
Conclusions
[37] For the reasons advanced by the appellant, as set out in paragraph [19] above, I consider that Mr Burke's conduct amounted to misconduct.
[38] The evidence does not support a conclusion that Mr Burke's conduct could be
24
regarded as "a momentary lapse into carelessness."
[39] I am of the view that the evidence supports the conclusion that s 130 of the Act operates to exclude Mr Burke from an entitlement to compensation because his injury was caused by his serious and wilful misconduct.
Orders
[40] I order that:
1. the review decision of the respondent dated 16 April 2013 be set aside;
2. a new decision rejecting the application for compensation by reason of the operation of s 130 of the Act be substituted in lieu of the respondent's original decision; and
3. the respondent pay the appellant's costs of and incidental to this appeal, to be agreed, or failing agreement, to be the subject of a further application to the Commission.
Exhibit 15.
2
Exhibit 7 (emphasis in original).
3
Exhibit 6.
4
(2007) 186 QGIG 527 ("Australia Meat Holdings").
5
Ibid, 528–9.
(1992) 2 Qd R 25.
7
Ibid, 43.
8
(1938) 60 CLR 336, 361–2 ("Briginshaw").
9
H Bennett & G A Broe, "The civil standard of proof and the 'test' in Briginshaw: Is there a neurobiological
basis to being 'comfortably satisfied'?" (2012) 86 Australian Law Journal 258.
(1992) 110 ALR 449.
11
Ibid, 449–50.
12
Exhibit 8.
13
Exhibit 9.
14
Exhibit 3.
15
T1-78 Ll 34–6.
16
T1-75 L19.
17
T1-75 Ll 33–6.
18
T1-60–5.
19
T1-60, Ll 45–6.
20
T1-65, Ll 7–8.
21
T1-65, Ll 26–33.
22
T1-70, L17.
23
Australia Meat Holdings (2007) 186 QGIG 527, 529.
24
Ibid.
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5
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