McKenzie and K & S Freighters Pty Limited (Compensation)
[2016] AATA 271
•29 April 2016
McKenzie and K & S Freighters Pty Limited (Compensation) [2016] AATA 271 (29 April 2016)
Division
GENERAL DIVISION
File Number
2014/6723
Re
Aleisha McKenzie
APPLICANT
And
K & S Freighters Pty Limited
RESPONDENT
DECISION
Tribunal Deputy President Dr Christopher Kendall
Date 29 April 2016 Place Perth The Tribunal sets aside the decision under review and, in substitution therefor, decides that the Respondent is liable to pay compensation to the Applicant in accordance with Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) in respect of a stress related injury sustained on the 12 August 2014.
The matter is remitted to the Respondent for assessment of the amount payable to the Applicant on the basis of this decision.
Pursuant to section 67(8) of the SRC Act, the Tribunal orders that the costs of these proceedings incurred by the Applicant be paid by the Respondent in accordance with section 6.9 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
...............[sgd]............................................
Deputy President Dr Christopher Kendall
CATCHWORDS
COMPENSATION – Applicant severely injured her colleague while driving a forklift at work – Applicant suffered stress related injury as a result of injury – whether Applicant denied compensation because her conduct resulted from her own serious and wilful misconduct pursuant to section 14(3) of the Safety, Rehabilitation and Compensation Act 1988 – Applicant found not to have engaged in serious and wilful misconduct – Applicant entitled to compensation for her injury - decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – sections 6(3) and 14(3)
Workplace Health and Safety Act 2011 (Cth)
CASES
Frederick Charles Adams and Australian Postal Corporation [1993] AATA 355
Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24
Kemp and K & S Freighters Pty Ltd [2011] AATA 312
Re Roberston and CSR Shipping [2001] AATA 325
Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26
Geoffrey William Vines v Australian Securities and Investment Commission [2007] NSWCA 126
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
FACTS
The Applicant in these proceedings, Ms Aleisha McKenzie, aged 35, was employed by the Respondent, K&S Freighters Pty Ltd (“K&S Freighters”), between 2006 and 2014. Ms McKenzie is currently unemployed and receives Centrelink benefits.
On 12 August 2014, Ms McKenzie was involved in an accident at work while she was driving a forklift on K&S Freighters’ premises in Kewdale, Western Australia. It is not disputed that Ms McKenzie hit a colleague, Mark Warren, while driving the forklift and that Mr Warren suffered a serious leg fracture.
As outlined by Ms McKenzie’s representative before this Tribunal in a Statement of Facts, Issues and Contentions dated 1 February 2013, Ms McKenzie claims she left the premises about an hour after the accident as she was “shaken and upset”.
On 13 August 2014, Ms McKenzie saw Dr Jeff Veling. On 19 August 2014, Ms McKenzie was seen by Dr Simon O’Connell. On 20 August 2014, Ms McKenzie was seen by Dr Rachel Harris.
Ms McKenzie states that all of these appointments were necessary because she was suffering “stress and anxiety” arising out of the accident.
On 20 August 2014, Dr Harris provided a workers compensation certificate to Ms McKenzie. Ms McKenzie then lodged a workers compensation claim with K&S Freighters for “stress and anxiety” arising out of the accident (T13 at 32-44) pursuant to section 14 of the Safety, Rehabilitation Act 1988 (the “SRC Act”). The claim form in relation to that matter is dated 20 August 2014.
Ms McKenzie was suspended from her employment and given a show cause letter on 9 September 2014 (T32 at 149).
Ms McKenzie responded to the show cause letter (S34 at 151-152) but was dismissed from her employment on 16 September 2014 for “failing to follow safe forklift driving procedures and refusing to take a drug test when requested” (T19 at 61).
Ms McKenzie challenged her dismissal and filed an application for unfair dismissal in the Fair Work Commission (S35 at 153-158).
The unfair dismissal application was settled by agreement on 22 May 2015 (S41 at 181). Pursuant to that Agreement, Ms McKenzie was given $8,000 as a redundancy.
On 18 September 2014, K&S Freighters made a determination that they were not liable to pay compensation to Ms McKenzie on account of stress for the injuries she suffered as a result of the forklift incident involving Mr Warren (T20 at 62-66). The stated reason for this was that her stress related injury was caused by her own “serious and wilful misconduct” while driving the forklift (as per section 14(3) of the SRC Act) and because Ms McKenzie submitted to an abnormal risk of injury while driving the forklift as she did when she hit Mr Warren (as per section 6(3) of the SRC Act).
K&S Freighters reconsidered and affirmed the Determination on 31 October 2014 (the “Reconsideration Decision”) (T23 at 73-76).
Ms McKenzie now asks this Tribunal to review the Reconsideration Decision of 31 October 2014, which affirmed the Determination dated 18 September 2014.
ISSUES
Before this Tribunal, K&S Freighters conceded that Ms McKenzie suffered a stress related injury within the meaning of section 5A of the SRC Act. Further, it was accepted that employment with K&S Freighters was a significant contributing factor.
At the hearing of this matter, the issues this Tribunal was asked to determine were significantly reduced, with K&S Freighters arguing only that they were not liable to pay compensation to Ms McKenzie for her stress related injury because (as per section 14(3) of the SRC Act), her injury was caused by her own “serious and wilful” conduct. The section 6(3) SRC argument was not argued or relied on.
It was further agreed between the parties that medical witnesses would not be required to attend the hearing to give evidence because Ms McKenzie had accepted that her condition did not result in her suffering a “serious and permanent impairment”.
In the circumstances, the Tribunal is required to determine whether K&S Freighters is required to pay compensation for Ms McKenzie’s stress related injury or whether they are exempt from doing so because her injury was caused by her own serious and wilful misconduct as per section 14(3) of the SRC Act.
LEGISLATION
Section 14(1) of the SRC Act relevantly provides as follows:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment. (emphasis added)
EVIDENCE
This matter was heard over one day in Perth. Ms McKenzie was represented by P Mullally from Workclaims Australia. K & S Freighters was represented by counsel, J R Wallace, instructed by Clarke Legal.
In addition to the documents noted below, the Tribunal was assisted by a thorough set of T documents (R1) comprising 76 pages and a further supplementary set comprising 386 pages (R2). These bundles of documents contained a considerable number of medical documents, many of which ultimately proved unnecessary for the hearing of this matter because of the reduced number of issues the Tribunal was asked to assess. To the extent that these medical reports or parts therein are arguably relevant to the issue of Ms McKenzie’s workplace conduct those parts are provided below. The T-Documents also contained, relevantly, copies of workplace safety manuals pertaining to this matter and numerous witness statements. The Tribunal also received a set of colour photographs of the accident scene (R3).
Ms McKenzie gave oral evidence before the Tribunal, as did her former supervisor, Mr Edward Hartman. It was not necessary to hear from medical expert witnesses.
Prior to the hearing both parties submitted a Statement of Facts, Issues and Contentions. Written closing submissions were received on 15 March 2016 from Ms McKenzie, through Mr Mullaly. Written submissions were then received on 22 March 2016 from K & S Freighters, through Mr Wallace. Finally, written submissions in reply were received from Ms McKenzie, through Mr Mullaly, on 29 March 2016.
NON-MEDICAL EVIDENCE
Ms McKenzie’s Application for Review of Decision, dated 29 December 2014 (T2 at 4)
In her Application for Review of Decision, Ms McKenzie states that she applied to the AAT because:
The applicant suffered an injury at work on or about the 12th August 2014.
The injury suffered was a psychological injury due to stress.
The applicant has incurred medical expenses and lost time from work and continues to be unfit for work.
The employer has refused compensation and following an internal review made on the 31st October 2014 continues to refuse compensation.
The applicant seeks a review of the decision to refuse compensation as she considers that the employer has incorrectly applied the law to the circumstances of her injury.
Statement of Ms McKenzie dated 12 August 2014 (T7 at 19)
Ms McKenzie made a written statement shortly after the workplace accident involving the forklift occurred. This statement reads as follows:
Before the actual incident I was unloading a 20' container under the awning to put stock in to the warehouse. Whilst I was doing this I noticed my driver (Tony) had entered the yard to collect the next order to deliver. Then I proceeded inside with stock from container with the idea of grabbing the next 2 pallets for Tony's truck after he parked in front of the awning, I have then gone and grabbed the pallets and began to proceed back out of the warehouse, sounding my horn as required, Tony has parked and I headed towards his truck to put the pallets on. Then I hit something and a couple of seconds later I saw that I had hit someone and saw Mark lying on the ground in pain. I immediately reversed the forklift backwards and got straight off to see how Mark was. Mark has said get help and I immediately ran to the office to grab someone. I yelled someone help no one came to aid immediately so then I ran to the lunch room and got Joshua Copley and he ran over with me to assist immediately, everyone began to follow suit after that. After establishing that Mark was responding accordingly I decided to dial 000 and arranged to get an ambulance out straight away. After that I checked with Mark if he needed anything & how his pain was. 15 minutes later ambulance still hadn't arrived so I called 000 again to find out their whereabouts and had to wait until they arrived, approx 45 minutes after incident Ambulance arrived and attended to Mark and took him to hospital.
Approximate time of incident 13:40 pm
My forklift tyres were approx 15cm off the ground. I had 2 pallets on at the time weighing 2.4tonne total.
I was travelling at a slow speed.
Mark was walking at the time towards his truck which was beside the container that I was unloading. He had left the lunchroom and was walking diagonally towards his cabin.
The direction I was heading towards Tony's truck put him out of my line of sight. [sic]
Letter from K & S Freighters to Ms McKenzie dated 13 August 2014 (T9 at 24)
This letter reads as follows:
You were involved in a serious workplace accident yesterday where a fellow employee was injured.
Within the investigation process yesterday you were requested to attend a drug test, and you refused.
The Company is committed to investigating this incident and requires you to attend a drug test today as per the
followingdetails below. In line with our Drug and Alcohol Policy (as attached) you are required to participate in a drug testing process.The Company will-consider a second refusal of this-testing process-as unreasonable and therefore will consider-your ongoing employment-with the Company.The details are as follows:
Date: 13 August 2014
Time: 1:20 pm
Location: Malaga
Cnr Alexander Drive & Beach Rd
Malaga WA 6090[sic]
Email from Sharmaine Pearson to Ashley Carnell, dated 14 August 2014 (S43 at 183)
This emails reads as follows:
I received a text message at 10.10am from Aleisha to say that she had been to the doctor and the doctor told her not to be driving or at work till Monday, she is still in shock, not sleeping well and has a headache.
Aleisha said she didn't receive the letter till approx 3pm yesterday so she didn't make the appointment, they will need to reschedule her appointment for Monday.
Email from Ashley Carnell to Kaye Evans, dated 15 August 2014 (S31 at 147)
This email reads as follows:
Whilst I was taking a statement from Aleisha attached above, I told her I think she should go for a drug and alcohol test. I advised her that if she was my employee (i.e. reported to me) I would force her and not give her an option.
She indicated to me that she had done something Saturday and then she feared she would fail.
I said to her that either way she should eliminate this as a contributing factor and move on
She then agreed with me and decided she would go for a cigarette.
I then found Sonic Health's number and by the time I began to call the number she had come back in and told me to stop she didn't want to do it.
I said I think she was doing the wrong thing but as I didn't think I could do anything I left it alone.
In the mean time matt had rang me and advised that there was not a lot he could do from the hospital and that the employee had suggested that Matt goes I drove and got Matt
I didn't see Aleisha on my way out
I then spoke with Sebastian Hill on the way to get Matt who advised that I should have forced her and that he would speak with you in the morning. [sic]
Letter from K & S Freighters dated 9 September (no year – but assumed to be 2014) (S32 at 149)
This letter, addressed to Mr [sic] Aleisha McKenzie and noted ‘hand delivered’ reads as follows:
I write to confirm details of our discussion today in relation to the incident at Kewdale Regal Transport on Tuesday 12th August 2014.
You were involved in an accident where your forklift collided with a fellow worker.
At this stage of the investigation we have determined the following:
1.That you failed to follow safe forklift driving procedures – driving forward with two pallets on the forklift obstructing your view.
2.In driving with an obstructed view you failed to see the worker until you had collided with him, causing him injury.
3.Immediately after the incident you were requested to attend a drug test – to which you initially agreed but then refused and made comment that you wouldn’t as you considered you may fail it due to taking a substance on Saturday.
4.You failed to attend and/or respond to a message from the Company related to a further request to attend a drug test on Wednesday.
The Company considers the above issues to be reasons to consider your actions as unacceptable workplace behaviour and is therefore considering termination of your employment.
You are provided the opportunity to respond to these current finding [sic] prior to us making a final determination. You are further reminded you have the right to have a support person
Please provide this information to us by COB 10th September 2014, and we will consider and provide you with the outcome of our consideration on Friday 12th September 2014 at 11am.
Letter from K & S Freighters to Ms McKenzie dated 16 September 2014 (T19 at 61)
This letter reads as follows:
I write to confirm details of our discussion today in relation to the incident at Kewdale Regal Transport on Tuesday 12th August 2014.
You were involved in an accident where your forklift collided with a fellow worker. You were provided the opportunity to respond to claims as follows:
1.That you failed to follow safe forklift driving procedures – driving forward with two pallets on the forklift obstructing your view.
2.In driving with an obstructed view you failed to see the worker until you had collided with him, causing him injury.
3.Immediately after the incident you were requested to attend a drug test – to which you initially agreed but then refused and made comment that you wouldn’t as you considered you may fail it due to taking a substance on Saturday.
4.You failed to attend and/or respond to a message from the Company related to a further request to attend a drug test on Wednesday.
The Company has considered your responses to the above issues and have determined that your actions as unacceptable workplace behaviour as unsafe forklift driving and failure to take a drug test when requested following a serious incident.
Therefore it is with regret l advise you that the Company is terminating your employment.
Letter from K & S Freighters to Ms McKenzie dated 18 September 2014 (T20 at 64) – “the Determination”
This letter reads as follows:
DETERMINATION
In accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988, I hereby determine that:
1. K&S Freighters is not liable to pay compensation to the said Ms Aleisha McKenzie in accordance with Section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of an injury reported to have been sustained on the 12/08/2014.
STATEMENT OF REASONS
1.On the 20/08/2014 Ms McKenzie completed a claim for compensation in respect of an injury she reported to have sustained during the course of her employment with K&S Freighters.
2.On her claim for compensation form, Ms McKenzie stated the following when asked, “What started the chain of events that led to your injury or illness?”
“... Hit driver to ground then started panicking and sickness, dizzy, upset, and scared to get on forklift.”
“... Someone walked out of my line of site straight into path of my forklift and I hit him.”
3.The incident report dated and signed by Ms McKenzie on the 25/08/2014 stated the following:
“... Aleisha was involved in an incident where as in the process of loading a truck with 2 pallets struck Mark Warren with the pallet as he walked through the yard from the lunch room to his truck parked parallel to containers.”
“... Aleisha gave what assistance she could, alerted the office and lunch room workers, and called the ambulance.”
…
9.On the 16/09/2014 Ms McKenzie was issued with a letter that terminated her employment with K&S Freighters. The letter signed by Kay Evans, General Manager, Human Resources stated the following:
“... You were involved in an accident where your forklift collided with a fellow worker. You were provided the opportunity to respond to claims as follows:
•That you failed to follow safe forklift driving procedures – driving forward with two pallets on the forklift obstructing your view.
•In driving with an obstructed view you failed to see the worker until you had collided with him, causing him injury.
•Immediately after the incident you were requested to attend a drug test – to which you initially agreed but then refused and made comment that you wouldn’t as you considered you may fail it due to taking substance on Saturday.
•You failed to attend and/or respond to a message from the Company related to a further request to attend a drug test on Wednesday.
… The Company has considered your responses to the above issues and have determined that your actions as unacceptable workplace behaviour as unsafe forklift driving and failure to take a drug test when requested following a serious incident.” [sic]
“... Therefore it is with regret that I advise you that the Company has terminated your employment”
10.I now must make reference to Section 14(3) of the Safety, Rehabilitation and Compensation Act 1988, where it states:
“14 - Compensation for injuries
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted. Unless the injury results in death, or serious and permanent impairment.”
11.I also make reference to Section 6(3) of the Safety, Rehabilitation and Compensation Act 1988, where it states:
“... 6 – injury arising out of or in the course of employment
(3)Subsection (1) does not apply where an employee sustained an injury:
(a) while at a place referred to that subsection; or
(b) during an ordinary recess in his or her employment
If the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.”
12.In order for compensation to be payable I must be satisfied on the balance of probabilities as distinct from possibilities that the employee sustained an injury which arose out of or in the course of her employment with K&S Freighters on 12/08/2014 and I must take into consideration Sections 6(3) and 14(3) of the Safety, Rehabilitation and Compensation Act 1988.
13.Having regard to all the information available, Ms McKenzie was responsible for the forklift being driven forward with two pallets on that obstructed her view and failed to see an employee until she had struck the employee with her forklift. I find as follows:
I.That Ms McKenzie’s injury arose out of or in the course of her employment with K&S Freighters Ply Ltd.
II.That Ms McKenzie appreciated the risk which was being undertaken by driving her forklift forward with a load that obstructed her view
III.Ms McKenzie unreasonably and voluntarily decided to drive the forklift forward while loaded that obscured her view
IV.I am satisfied driving a forklift forward while loaded and obscuring her view presented an abnormal risk
V.In that regard, Ms McKenzie’s injuries cannot be said to have arisen out of or in the course of her employment given the operation of Section 6(3) of the Safety, Rehabilitation and Compensation Act 1988.
14.In the alternative, if Section 6(3) is not applied, and Ms McKenzie’s injuries did arise out of or in the course of her employment, I find as follows:
I.Wilful misconduct involves acts done intentionally with knowledge that they will amount to misconduct.
II.Ms McKenzie was aware that driving her forklift forward with a load that obstructed her view was directly against the “K&S Guidelines for Forklift Operations” where it states under 3.5 – Safe Driving Practices – Never proceed forward with a load obstructing your vision – proceed slowly in reverse"
III.In doing so, Ms McKenzie accepted a risk of injury and intentionally adopted a practice that could lead to an accident involving a known risk of injury.
IV.Misconduct is serious if it significantly increases the likelihood of injury.
V.Ms McKenzie’s deliberate actions of driving her forklift forward with a load that obscured her view significantly increased the likelihood of injury.
VI.Injury was caused by serious and wilful misconduct of Ms McKenzie
VII.In that event, compensation is not payable to Ms McKenzie in accordance with section 14(3) of the Safety, Rehabilitation and Compensation Act 1988.
As you [sic] claim has been denied I have attached outstanding medical invoices for your private settlement.
Ms McKenzie’s Response to “Show Cause” letter in relation to employment termination (undated) S34 at 151)
This letter from Ms McKenzie reads as follows:
RE: Confirmation of Incident Investigation
In response to our teleconference and official letter conducted on 9th Sept 2014,
1.You have stated that I have failed to follow safe forklift driving procedures by driving forward carrying 2 pallets obstructing my view. As I replied during our conversation the 2 pallets combined height is 1.6 meters. My view was not obstructed. I can see over the top and on either side. If I was carrying another product, which is substantially higher, a different approach would have been taken, and reversing would have been the only option.
2.You say that due to me driving with what you assumed was an obstructed view that I failed to see the worker that I collided with. The worker SHOULD NOT have been walking through my loading area, SHOULD NOT have parked his truck in a non designated area (right next to where I was working) which could clearly be seen that it was being used. He should have made eye contact with me and asked permission to enter the area if he had followed correct procedures. I did not see the worker because I was following correct safety procedures and focusing on the movements of my driver, who still inside his cabin, and waiting to make eye contact with and direct him where to go once he had stepped out of his cabin. As always I followed company procedures to maintain a Safe working environment. I beeped my horn entering the loading area and I was travelling at a slow speed.
3.You say I refused a drug test immediately after the incident that is completely incorrect to some extent. Immediately after the incident l was the one to call the ambulance 3 times. Made the worker as comfortable and as relaxed as possible by putting a pillow and a blanket on him and administering first aid the best way I could. Whilst reeling with the shock and disbelief of what had just happened. Basically I did not move from his side until the paramedics arrived which was a minimum of 45 minutes. I was doing the job of whoever is the first aid officer / manager of this yard.
It was only after the ambulance had left the yard did the absolute shock and horror of what had just happened hit me. My emotions went into overdrive and it was said to me that I was a mess. It was only after I tried but failed to calm myself that I went into the office to make a statement, after the conclusion of the statement it was suggested that it would be in my best interest to have a drug test done. Firstly I had replied no to this as all I wanted to do was go home and lie down as nausea was taking over suddenly and I wanted to throw up. I was in a confused, fragile state and I couldn’t think straight. Which was why I changed my mind and then said I would go for one. at no stage during this time did I mention that I had taken something on the weekend. I was overcome by nausea again, now including uncontrollable shakes, I decided I needed to get home where I knew I would have a better chance in calming down. Not once did I refuse any drug test, as you claim I did, because I was never told I must go nor ordered to go! Therefore I cannot refuse what I have not been told to do, no one seemed to know what to do.
4.Your last comment about failing to attend and/or respond to a message from the company to request I attend another scheduled drug test is completely false. As I explained to you. A letter which you had delivered to the letter box of my parents’ house, was not discovered in the letter box by my mother until around 2.30. She immediately contacted me to tell me I had a letter there, she then brought it over to me around 3 pm. Had the letter been delivered by registered post or even given to someone after knocking on the door, the outcome would have been very different. I opened the letter to find out that I had missed the appointment booked for 1.30. I contacted my office (on my own personal phone, which you seem to be confused about) and explained that I only just received the letter and to please ask Ashley to get it rescheduled. This in turn was relayed to Ashley first by phone call / voicemail and then followed up with an email, via the office, to which I never received any reply.
In reference to the text message you sent me regarding the same test, as I had explained to you in a reply text and in conversation today, my work phones battery had died and I had no means of charging it as my charger was still in my truck. I received the charger on the morning of Friday 15th and charged my phone, turning it on. That is when I received your text and replied to you straight away. Had you actually tried to call my phone you would have learnt that it was off and you would have been given the chance to leave a voice message and/or find another way to get in contact with me i.e. Calling my work office, things would have been very different and I would have been at that appointment. But nothing happened.
I dispute the assumptions made against me and how any reasonable person could come to the conclusion as stated by yourself, on the evidence presented. The whole process was disorganised with no clear direction. And most importantly this company states that the employee is the most important asset. How is it that no one bothered to contact me for a week at the least to see if I was ok and if I needed any help. Nor did anyone, on the day of the incident, suggest that I find a life home because I was in no state to drive. How did anyone know that I even reached my home? [sic]
Fair Work Commission Form F3 – Employer Response to Unfair Dismissal Application dated 1 October 2014 (S39 at 171)
Relevantly, this document notes the following reasons for Ms McKenzie’s dismissal:
1.The Applicant was employed as a Forklift Operator at the company’s Perth depot. The Applicant was employed by the respondent from 11 December 2006 until the termination of her employment on 16 September 2014.
2.In August 2012 the Applicant was subject to Random Drug and Alcohol Testing consistent with the company’s Drug and Alcohol Policy. The Applicant failed the test (Illegal drugs present). As a result of the positive detection the Applicant was suspended from work, issued with a Final Written Warning and required to produce a negative result prior to return to work. The Applicant was also provided the option of the company providing her with assistance if she felt she had a problem with the use of illegal drugs, she declined this offer. The applicant was clearly advised that the detection was a serious breach of company policy and that this type of behaviour at work had the potential to place the health and safety of both herself and others at risk.
3.On Tuesday 12th August 2014 the Applicant was the driver of a Forklift that was involved in a collision with another employee resulting in a serious injury to the other employee.
4.Immediately after the incident the Applicant was requested to attend a Drug Test. Initially the Applicant agreed, however she shortly returned to advise she would not attend the drug test and made comment that she could not attend as she had used a substance over the weekend and considered she may fail the drug test.
5.The company attempted to make contact with the Applicant via phone call, text message and a letter to advise of the requirement to attend a scheduled drug and alcohol test The Applicant failed to attend the appointment and also failed to respond to the company.
6.The Company undertook a detailed investigation into the incident and determined the following:
6.1.The Applicant breached her duty of care by failing to follow safe forklift driving procedures (driving with pallets significantly obstructing her view).
6.2.In driving with an obstructed view, the Applicant failed to see the worker until she collided with him, causing him serious injury.
6.3.Multiple refusals to complete Drug and Alcohol tests, comments relating to recent illegal substance use and a history of illegal substance being present in the system indicates that likelihood that the use of illegal substances may be a contributing factor to the incident.
7.Given the above findings, the decision was made to terminate the Applicant’s employment.
In section 3.2 of this form, under the heading “What is your response to the Applicant’s contentions?”, the following response is provided:
The Respondent acknowledges that this incident was an accident and accepts that it was not the intention of the Applicant to seriously injure a fellow worker, however it has been determined that the Applicant’s failure to follow safe operating procedures combined with a refusal to undertake a Drug and Alcohol Test (especially given past indiscretions) to be a major contributor to the incident and a breach of duty of care.
Ms McKenzie’s Request for Reconsideration of the Determination Regarding Compensation dated 16 October 2014 (T21 at 67)
This request, prepared for Ms McKenzie by Workclaims Australia, reads as follows:
We are the Industrial Agents representing Aleisha McKenzie (the worker)). We attach a copy of her written authority.
She has instructed us to send you a request for re-consideration in writing including the reasons for the request.
In reference to paragraph 9 of the terms of the Determination, a Statement of Reasons and a Notice of Rights, we respond to the claims as follows:
•“That you failed to follow safe forklift driving procedures – driving forward with two pallets on the forklift obstructing your view.”
The worker was not a regular forklift operator although she had her forklift license her everyday role was that of a HR truck driver. The stacking of two pallets on the forklift may be less than ideal but no evidence has been produced to prove that the worker was able to reverse the forklift as she did not have a spotter. Also she was in the warehouse area and not in the yard. There was no requirement in the circumstances where she did have forward vision (albeit restricted), was working in the warehouse and there was no staff member to spot for her.
•“In driving with an obstructed view you failed to see the worker until you had collided with him, causing him injury.”
Although the worker had a less than ideal view the co-worker was negligent in failing to keep a safe look out as he walked in front of the worker and was in a no go zone. The worker could clearly see a person over the 2 pallets but she was focussed on her own driver who was not directly to the front but to the side. The injury was a result of both parties not one.
•“Immediately after the incident you were requested to attend a drug test - to which you initially agreed but then refused and made comment that you wouldn’t as you considered you may fail it due to taking substance on Saturday.”
The worker denies stating she took any substances the Saturday before the drug test. There is no record of the drug test being booked in or scheduled at a clinic and therefore no real offer, acceptance or decline to take the proposed drug test. For this to have any relevance to the workers compensation claim, the employer would need to prove that the accident occurred because of the worker's use of prohibited drugs. No such evidence exists.
•“You failed to attend and/or respond to a message from the Company related to a further request to attend a drug test on Wednesday.”
The worker was sent a message in the form of a letter to her old postal address where she used to live at home. Given the nature of the message and urgency to respond the HR department should have called or ensured that she received the letter by hand. There was CCTV footage at the old address where the letter was delivered, and this shows the person coming and going and making no attempt to knock on the door.
•“The company has considered your responses to the above issues and have determined that your actions as unacceptable workplace behaviour as unsafe forklift driving and failure to take a drug test when requested following a serious incident.”
This is a workplace accident which resulted in injury from the negligence of both parties, it was not malicious or intent of injury towards the fellow worker. It should be deemed as a workplace accident with a formal warning and OHS training to rectify it. There is a clearly lack of safety training provided and enforced by the manager of this workplace, otherwise this incident would not have occurred. The employer has a duty of care to provide a safe system of work, correct protective clothing and competent employees. The alleged drug test is hearsay and there is no evidence of an offer, acceptance or decline of this drug test on record at a clinic or at work. The letter setting the test for 1.20pm on the 13th August 20l4 was not received by the worker in time to attend. The worker notified the office of this and asked for or another appointment but nothing more was heard from the employer.
In reference to paragraph 13 of the terms of the Determination, a Statement of Reasons and a Notice of Rights, we respond to the claims as follows:
II.“That Ms McKenzie appreciated the risk which was being undertaken by driving her forklift forward with a load that obstructed her view.”
The worker's view was not obstructed as she was still able to see ahead and to the side.
III.“Ms McKenzie unreasonably and voluntarily decided to drive the forklift forward while loaded that obscured her view.”
The worker did not voluntarily or unreasonably decide to drive the forklift while her view was obscured. She was able to see well over the pallets. She was on a high seat and she is tall enough to have a good view. The lack of staff to spot for her in a reverse situation and her location in the warehouse made it safe to proceed as she did.
IV.l am satisfied driving a forklift forward while loaded and obscuring her view presented an abnormal risk.
In the circumstances of this yard it was not an abnormal risk. The gentleman who was knocked down was not allowed to be in that area. He conceded that he saw the forklift and heard its horn. The risk was not higher than normal. It may appear to be abnormal because of what happened but the test is before the worker drives the forklift. At that time the risk was not more than normal.
In reference to paragraph 14 of the terms of the Determination, a Statement of Reasons and a Notice of Rights, we respond to the claim as follows:
II. Ms McKenzie was aware that driving her forklift forward with a load that obstructed her view was directly against the “K and S guidelines for Forklift Operations” Where it states under 3.5 – Safe Driving Practices- Never proceed forward with a load obstructing your vision – proceed slowly in reverse”
There was no requirement in the circumstances where she did have forward vision (albeit restricted), was working in the warehouse and there was no staff member to spot for her.
III. In doing so, Ms McKenzie accepted a risk of injury and intentionally adopted a practice that could lead to an accident involving a known risk of injury.
There is no evidence that the worker intentionally accepted the risk or intentionally adopted a practice which could lead to a known risk of injury. The driving was safe, she could clearly see over the top of the pallets and to the side so there was no known risk of injury.
IV. Misconduct is serious if it significantly increases the likelihood of injury.
The worker's driving did not increase the likelihood of injury. She could see where she was going. Her attention was focused on her own driver with whom she had to make eye contact. The injured worker was in a no-go zone.
V. Ms McKenzie’s deliberate actions of driving her forklift forward with a load that obscured her view significantly increased the likelihood of injury.
The worker’s driving did not increase the likelihood of injury. She could see where she was going. Her attention was focused on her own driver with whom she had to make eye contact. The injured worker was is a no-go zone.
VI. Injury was caused by serious and wilful misconduct of Ms McKenzie.
There is no logical connection between the conduct involved and a finding of serious and wilful misconduct as being the cause of the accident. There is simply no evidence to establish misconduct and certainly no evidence to establish any wilful act. The use of the term wilfulness in the section requires some deliberate conscious act on the part of the worker. If she had continued to drive forward if someone had called out to her to stop and she heard that call but proceeded anyway that would be wilful. The employer's investigation failed to establish any element of intent or wilfulness.
There is absolutely no evidence to support the case officer’s finding that:
1. The worker was guilty of serious and unlawful misconduct: s14(3)
2.The worker voluntarily unreasonably submitted to an abnormal risk of injury: s6(3)
Accordingly we seek a re-consideration of the decision and a finding that the worker is entitled to workers compensation.
Statement of Reasons of K & S Freighters dated 31 October 2014 (T23 at 74) – the “Reconsideration Decision”
These reasons, affirming the determination dated 18 September 2014, provided as follows:
STATEMENT OF REASONS
1. Reviewable Decision
1.1The matter has been considered in accordance with the provisions of Section 62 of the Safety, Rehabilitation & Compensation Act 1988 (the SRC Act). Taking into account all of the available evidence including the Request for Reconsideration dated 16/10/2014 I have AFFIRMED the Determination dated 18/09/2014.
2. Background
2.1.On the 20/08/2014 Ms McKenzie completed a Claim for Compensation in respect of “stress.”
2.2.By Determination dated 18/09/2014 liability was denied in respect of “stress.”
2.3.It is noted that Dr Jeff Veiling [sic] provided the initial medical certificate (non Workcover certificate) stating she will be unfit for her usual occupation from the 13/08/2014 to 15/08/2014.
2.4.I note the incident report dated 25/08/2014 states the following:
“... Aleisha was involved in an incident where as in the process of loading a truck with 2 pallets struck Mark Warren with the pallet as he walked through the yard from the lunch room to his truck parked parallel to containers.”
”... Aleisha gave what assistance she could alert the office and lunch room workers and called the ambulance.”
2.5.Further medical certificates were issued by Dr Simon O'Connell (non Workcover certificate) stating she will be unfit for work from the 18/08/2014 to 23/08/2014 and is receiving medical treatment for “stress”.
2.6.I make reference to your request for reconsideration and the following statement:
“… The worker was not a regular forklift driver although she had her forklift licence. ”
2.7.The company maintains that Ms McKenzie performed forklift duties on a regular basis and had been trained in safe forklift driving procedures.
2.8.It is further noted in your request for reconsideration the following statements made by you:
“...The stacking of two pallets on the forklift may be less than ideal.
"... Although the worker had a less than ideal view."
"... There was no requirement in the circumstances where she did have forward vision (albeit restricted), was working in the warehouse and there was no staff member to spot for her’’
2.9.I now make reference to “K&S Guidelines for Forklift Operation” in particular “3 – Safe Forklift Operation – 3.5 – Safe Driving Practices – Never proceed forward with a load obstructing your vision – proceed slowly in reverse.”
3 Findings
3.1In having regard to all of the available evidence, including the request for reconsideration lodged by Ms McKenzie, I have concluded the following:
3.1.1Ms McKenzie was considered a licensed, experienced and competent forklift operator.
3.1.2From the evidence obtained Ms McKenzie's vision was obstructed by the pallets.
3.1.3It is not within K&S Procedures that a “spotter” is used for general forklift driving.
3.1.4I am in agreeance with the reasons for the decision provided by the primary decision maker
3.1.5Consequently, the request for reconsideration provides no cause for me to disagree with the findings of the primary delegate.
4.Decision
4.1.In having regard to all of the available evidence, I am satisfied that the decision to deny liability is correct and has been made in accordance with the relevant provisions of the SRC Act.
4.2.As such, I am satisfied that there is no liability for K&S Freighters to pay compensation to Ms McKenzie in respect of “stress” alleged to have been sustained on the 12/08/2014 and I have affirmed the determination dated 18/09/2014.
Ms McKenzie’s Witness Statement filed pursuant to the Direction of Commissioner Williams made on 11 November 2014, dated 16 March 2015 (S40 at 174)
This statement relates to Ms McKenzie’s wrongful dismissal claim. The facts outlined are nonetheless informative. The statement reads as follows:
1.I am the Applicant in these proceedings seeking a remedy from the Fair Work Commission for a summary dismissal which occurred on the 16th September 2014.
2.I started work with the employer on the 13th December 2006 and I was employed originally as a warehouse store person.
3.About 2 years into the employment I became a truck driver and remained such until the end of my employment.
…
5.I was on a weekly wage of $917 gross per week.
6.On the 12th August 20141 was involved in an accident at work. I was driving a forklift in the Kewdale Freight Terminal when I collided with a fellow worker named Mark Warren.
7.Mark was injured in the accident and taken to hospital by ambulance. I suffered severe shock and stress from the accident
8.I made an initial written statement on the day of the accident and I then went home.
9.The respondent conducted an investigation into the accident and ultimately dismissed me for serious misconduct in driving the forklift, and refusing a drug test.
10.I was terminated from my employment by Kaye Evans the company’s HR manager.
11.There was some history between Ms Evans and myself. I am not a union member, while all other workers on the site are union members.
12.On or about the 7th February 2014 I was driving the forklift at the Kewdale freight terminal while a union meeting was taking place in the lunch room.
13.Following the meeting a union official made a complaint about my driving of the forklift namely that I was speeding, not wearing a seat belt and wearing inappropriate work wear. This complaint was made to Kaye Evans.
14.Ms Evans instructed me to wear different shorts, and I eventually purchased different shorts as a result of the complaint
15.The complaint and the issue of shorts was really picking on me as about half of the yard staff did not conform to a uniform.
16.Ms Evans had a poor attitude towards me due to the shorts issue and she had previously told my boss Ed Hartman that “he should not protect me as I was not worth it, she will bring you down”.
17.On the 12th August 2014 I started work at about 8.15am. I was in good health and was not affected by drugs or alcohol.
18.I had 2 or 3 deliveries to make in the metropolitan area. On the morning I had loaded my truck and made 2 deliveries.
19.At about 1.40pm I was operating the fork lift in the warehouse and unloading a 20 foot container which was under awning in the yard.
20.While I was doing this I noticed my driver (Tony) who was coming to do a delivery for me and so I picked up two pallets and proceeded to exit the warehouse heading towards Tony’s truck.
21.I was wearing my seatbelt and proceeding slowly and as I approached Tony’s Truck I was slowing down to lower the pallet to the ground.
22.At that time I hit something and within a few seconds I saw that I had hit Mark Warren who was lying on the ground.
23.I ran to the main office and got Joshua Copley to help. I applied first aid and stayed with Mark. I also called the ambulance twice to get Mark to hospital. It took about 55 minutes for the ambulance to come.
24.After the ambulance left I went to the smoko area for a cigarette and chatted with some of the staff there.
25.Ashley Carnell who is the yard supervisor came and saw me there and asked to come into the office when I was ready to talk about the incident
26.He took a statement from me and typed up what I said. I then signed the statement and Ashley witnessed it.
27.After I had finished the statement Ashley said that what he would do (if it was him) was to have a drug and alcohol test done. I said I would but then as I wasn’t feeling well I wanted to go to home and did so.
28.I never refused to take a drug and alcohol test as I was not asked to do so.
29.The next day, I was not well and went to the doctor at the Herdsman Medical Centre, and the doctor put me off work for the rest of the week and gave me a prescription for sleeping tablets. He said not to drive.
30.I sent a text message to Vicki Lovreta at the office informing her that I would not be in, I used my personal phone as my work phone battery was dead and the charger was in the truck at work.
31.In the afternoon at about 3pm my mother came to see me with an envelope which had been hand delivered to her home at …. I do not live at that address.
32.When I opened the envelope it contained a letter from the employer requiring me to attend a drug test at 1.20pm that day in Malaga. By the time I read the letter the appointment time had long since passed.
33.I rang the office and spoke to Vicki and explained that I had just received the letter and to ask Ashley to get it rescheduled. I never received any response to my request for the test to be rescheduled.
34.The truck driver Tony on Friday the 15th August 2014 dropped off my charger.
35.After putting on the charger, I retrieved messages from work informing me of the appointment for the drug test. I immediately replied explaining that I did not receive the messages or the letter in time.
36.I went back to the doctor again on the 19th August 2014 and he certified me unfit for work until the 23rd August 2014.
37.On the 20th August 2014 I lodged a claim for stress workers compensation, with the employer.
38.On the 3rd September 2014 I returned to work on office duties for 4 hours per day under a rehabilitation programme from that date until I was suspended.
39.On the 9th September 2014 I attended a meeting with my boss Ed Hartman and a support person and Ms Evans the HR Manager was on the telephone from the Eastern States.
40.The meeting was to discuss the accident as Ms Evans had not been able to talk to me since the accident. At the end of the meeting she said I was suspended and that Ed would hand me a letter to read.
41.The letter of the 9th September 2014 was a show cause letter and I had until the COB the following day to provide a response.
42.I provided a 2 page response oversight to my boss Ed Hartman for him to send on to the Ms Evans the HR manager.
43.I was originally required to attend a meeting on Friday 12th September 2014 but this was postponed.
44.The meeting was rescheduled for the 16th September 2014 and was attended by Ms Evans, the HR manager, Ed Hartman and myself.
45.Ms Evans told me at the meeting that I was to be dismissed, not going to be paid any notice, but would be paid accrued settlements to date, I was handed a letter of termination.
46.The 4 reasons given for my termination set out in the letter were the same reasons set out in the show cause letter of the 9th September 2014. I had provided full and complete answers in the show cause letter which were seemingly ignored by Ms Evans in her investigation. I completely dispute the reasons given for my dismissal as follows.
47.1Failure to follow safe forklift driving procedures – the 2 pallets I had on the forklift had a combined height of 1.6 meters. Following the accident Ed Hartman and I measured the height of the product which I was moving on that day and it was 1.6 meters. The particular forklift I was using is higher model [sic] than other forklifts in the business and I could see over the pallets on the tyres and I could see on either side. At the time of exiting the warehouse I was looking at the direction of Tony’s truck and looking to see where he was which meant that my vision was directed away from the area where Mark Warren had entered. I had beeped my horn as I left the warehouse and Mark shortly after the accident stated in writing that he had heard the horn being sounded. Mark was in a no go zone.
47.2On driving with an obstructed view failed to see the other worker - I didn’t see the other worker because he should not have been in that area. Mark had parked his truck under the awning which is not a designated parking area for trucks. Mark had left the lunch room to return to his truck and did not follow the designated walk way to get to his truck. The distance between the warehouse door and where I collided with Mark is about 5 meters. He was [sic] subsequently said that he saw me and heard the horn so I don’t understand why he continued to walk in that direction.
47.3Refusal to take drug test on 12th August 2014 – I was never asked or directed to take a drug test on the day of the accident. As previously stated Ashley Carnell the yard supervisor stated that if it was him he would take a drug test and I agreed that I would do that but never went ahead as I was feeling sick and wanted to get home and rest. I did not say to Ashley or anyone that I would not take the test due to fear of failing it. No drug test was arranged by the employer for me to attend on the afternoon of the 12th August 2014.
47.4Failure to attend a drug test on the Wednesday – the failure to attend the drug test scheduled for 1.30pm on the Wednesday was through no fault of my own because as previously stated I did not receive the letter or the message on my work phone until after the scheduled appointment. I did not reside at … and my work phone’s battery was flat so I did not receive calls or messages. I was therefore unaware of the appointment for the drug test and I received no further communications from the employer for the test to be re-scheduled.
47.Following the accident when I returned to work I was interviewed by Michael Willis from Comcare who later issued an Improvement Notice against the employer dated the 12th September 2014.
48.In the notice Mr. Willis described how exclusion zones and pedestrian walkways throughout the workplace were poorly delineated and metal barriers adjacent to the lunchroom were not complete and had openings.
49.On the notice Mr Willis described how exclusion zones and pedestrian walkways throughout the workplace were poorly signed and metal barriers adjacent to the lunch room were not complete and had openings.
50.If the employer had properly laid out the exclusions zones and walkways with proper barriers Mark Warren could not have entered the no-go zone by simply walking from the lunchroom.
51,I hold a current license to perform high risk work and a heavy vehicle driver's license.
52.I remain unemployed and have continued to apply for numerous positions but have not been successful.
Letter to “Allison” from Ms McKenzie, dated ‘July 23 (4 days ago)’ (S47 at 234)
This letter reads as follows:
Hi Allison, okay I have attached a few of the documents from the investigation for you to better understand the situation. Once I re-read them again I realised that I have forgotten so much surrounding that time.
The notes below are the ones that I have just summarised for myself prior to attending their councillor, so they remain fresh in my brain, they are not getting submitted to anyone.
Dates to State....
Employed by K&S Freighters 13th Dec 2006
Date of incident 12th August 2014
Date of termination 16th September 2014
Claiming workers comp from 13th August to current date and continuing however long it takes
People involved Mark Warren Person was struck
Ed Hartman My immediate boss
Trevor?The yard union Rep/recruiter
Kaye EvansHR Department/ terminated by her
Mick or Mike? State or National TWU Rep / not employed by our company
I can’t think of any others that l may have forgotten, or that hold any importance in this report. We will get to that though if you need any other information I will get it.
After the incident Trevor ran around asking if I had been sacked yet, pointing the finger at me, he was immediately blaming me for the accident even after Mark admitting to being in the wrong.
Frequent bullying because I wasn’t in the union, Trevor had tried to turn the whole yard against me. telling all the workers not to talk to me, like we were school kids, All because l wouldn’t join the union.
I was picked on by Kaye Evans continuously after Mick or Mike TWU made a complaint about my uniform being non adequate. 65 % of employees did not have on correct uniform, but l was singled out and picked on (photos to prove it)
Trevor and a fellow worker were both involved in an altercation, resulting of them both being stood down for 1 week, the fight was over Trevor running me down and treating me badly.
The company had not accepted ANY responsibility for the incident, whilst making me take all the blame, continually having sickening guilty feelings, when clearly they have a major part in this incident, that is why comcare issued an immediate work order to the workplace.
The day of the incident after I tended to, and organised all first aid aspects, I was left in an immense emotional, fragile and shocked state. Not one person came to my aid, nor offered me a lift home, I drove myself home 30 mins away. I never received any phone calls of concern for my condition. Duty of care was NON EXISTENT
The was [sic] I was driving with the 2 pallets on the forklift was standard practice by myself and my boss nearly everyday, in plain view of the yard managers for well over a year, not once were either of us told to not operate this way
Kaye Evans is on a recording slandering me, without knowing all of the details (no body knows this) She has been out to get me for some time.
the whole incident has ruined my life and removed me from a job that l thoroughly enjoyed and threw all my energy into. Hence being there for nearly 8 years. I had no intentions of leaving this job, but now I find myself struggling to come to terms with the fact that I am unable to think of that work environment without panicking and having what I am told Is anxiety attacks.
Dealing with the fact that I am being solely blamed for what happened when in my opinion.... Company 55%, Mark 30% and myself 15% responsibility. And Mark has returned to work on light duties in the meantime. [sic]
Ms McKenzie’s Witness Statement -- filed pursuant to the directions made by this Tribunal dated 18th November 2015
This statement reads as follows:
1.I am the Applicant in these proceedings seeking the payment of workers compensation payments and medical expenses
2.I started work with the employer on the 13 December 2006 and I was employed as a Truck Driver.
3.I was born on the … I was on a weekly wage of $917 gross per week.
4.On the 12th August 2014 I was involved in an accident at work. I was driving a forklift in the Kewdale Freight Terminal when I collided with a fellow worker named Mark.
5.Mark was injured in the accident and taken to hospital by ambulance. I suffered severe shock and stress from the accident. I continue to suffer psychological injury from that event such that I am unable to work.
6.I made an initial written statement on the day of the accident and then went home.
7.The respondent conducted an investigation into the accident and ultimately dismissed me for serious misconduct in the forklift. I deny that I was guilty of serious misconduct.
8.On the 12th August 2014 I started work at about 8.15am, I was in good health and was not affected by drugs or alcohol.
9.I had 2 or 3 deliveries to make in the metropolitan area. On the morning I had loaded my truck and made 2 deliveries.
10.At about 1.40pm I was operating the fork lift in the warehouse and unloading a 20 foot container which was under awning in the yard.
11.While I was doing this I noticed my driver (Tony) who was coming to do a delivery for me and so I picked up two pallets and proceeded to exit the warehouse heading towards Tony’s truck.
12.I was wearing my seatbelt and proceeding slowly and as I approached Tony’s Truck I was slowing down to lower the pallet to the ground.
13.At that time I hit something and within a few seconds I saw that I had hit Mark Warren who was lying on the ground.
14.I ran to the main office and got Joshua Copley to help. I applied first aid and stayed with Mark. I also called the ambulance twice to get Mark to hospital. It took about 55 minutes for the ambulance to come.
15.After the ambulance left I went to the smoko area for a cigarette and chatted with some of the staff there.
16.Ashley Carnell who is the yard supervisor came and saw me there and asked to come into the office when I was ready to talk about the incident.
17.He took a statement from me and typed up what I said. I then signed the statement and Ashley witnessed it.
18.After I had finished the statement Ashley said that what he would do (if it was him) was to have a drug and alcohol test done. I said I would but then as I wasn’t feeling well I wanted to go to home and did so.
I9.I never refused to take a drug and alcohol test as I was not asked to do so.
20. The next day, I was not well and went to the doctor at the Herdsman Medical Centre, and the doctor put me off work for the rest of the week and gave me a prescription for sleeping tablets. He said not to drive.
21.I sent a text message to Vicki Lovreta at the office informing her that I would not be in. I used my personal phone as my work phone battery was dead and the charger was in the truck at work.
22.In the afternoon at about 3pm my mother came to see me with an envelope which had been hand delivered to her home at …. I do not live at that address.
23.When I opened the envelope It contained a letter from the employer requiring me to attend a drug test at 1.20pm that day in Malaga. By the time I read the letter the appointment time had long since passed.
24.I rang the office and spoke to Vicki and explained that I had just received the letter and to ask Ashley to get it rescheduled. I never received any response to my request for the test to be rescheduled.
25.The truck driver Tony on Friday the 15th August 2014 dropped off my charger.
26.After putting on the charger, I retrieved messages from work informing me of the appointment for the drug test. I immediately replied explaining that I did not receive the messages or the letter in time.
27. I went back to the doctor again on the 19th August 2014 and he certified me unfit for work until the 23rd August 2014.
28.On the 20th August 2014 I lodged a claim for stress workers compensation, with the employer.
29.On the 3rd September 2014 I returned to work on office duties for 4 hours per day under a rehabilitation programme from that date until I was suspended.
30.On the 9th September 2014 I attended a meeting with my boss Ed Hartman and a support person and Ms Evans the HR Manager was on the telephone from the Eastern States.
31.The meeting was to discuss the accident as Ms Evans had not been able to talk to me since the accident. At the end of the meeting she said I was suspended and that Ed would hand me a letter to read.
32.The letter of the 9th September 2014 was a show cause letter and I had until the COB the following day to provide a response.
33. I provided a 2 page response oversight to my boss Ed Hartman for him to send on to the Ms Evans the HR manager.
34.I was originally required to attend a meeting on Friday 12th September 2014 but this was postponed.
35.The meeting was rescheduled for the 16th September 2014 and was attended by Ms Evans, the HR manager, Ed Hartman and myself.
36.Ms Evans told me at the meeting that I was to be dismissed, not going to be paid any notice, but would be paid accrued settlements to date. I was handed a letter of termination.
37.The 4 reasons given for my termination set out in the letter were the same reasons set out in the show cause letter of the 9th September 2014. I had provided full and complete answers in the show cause letter which were seemingly ignored by Ms Evans in her investigation. I completely dispute the reasons given for my dismissal as follows.
37.1Failure to follow safe forklift driving procedures – the 2 pallets I had on the forklift had a combined height of 1.6 meters. Following the accident Ed Hartman and I measured the height of the product which I was moving on that day and it was 1.6 meters. The particular forklift I was using is higher model than other forklifts in the business and I could see over the pallets on the tyres and I could see on either side. At the time of exiting the warehouse I was looking at the direction of Tony’s truck and looking to see where he was which meant that my vision was directed away from the area where Mark Warren had entered. I had beeped my horn as I left the warehouse and Mark shortly after the accident stated in writing that he had heard the horn being sounded. Mark was in a no go zone.
37.2On driving with an obstructed view failed to see the other worker – I didn’t see the other worker because he should not have been in that area. Mark had parked his truck under the awning which is not a designated parking area for trucks. Mark had left the lunch room to return to his truck and did not follow the designated walk way to get to his truck. The distance between the warehouse door and where I collided with Mark is about 5 meters. He was [sic] subsequently said that he saw me and heard the horn so I don’t understand why he continued to walk in that direction.
37.3Refusal to take drug test on 12th August 2014 – I was never asked or directed to take a drug test on the day of the accident. As previously stated Ashley Carrel [sic] the yard supervisor stated that if it was him he would take a drug test and I agreed that I would do that but never went ahead as I was feeling sick and wanted to get home and rest. I did not say to Ashley or anyone that I would not take the test due to fear of failing it. No drug test was arranged by the employer for me to attend on the afternoon of the 12ft August 2014.
37.4Failure to attend a drug test on the Wednesday – the failure to attend the drug test scheduled for 1.30pm on the Wednesday was through no fault of my own because as previously stated I did not receive the letter or the message on my work phone until after the scheduled appointment. I did not reside at … and my work phone’s battery was flat so I did not receive calls or messages. I was therefore unaware of the appointment for the drug test and I received no further communications from the employer for the test to be re-scheduled.
38.Following the accident when I returned to work I was interviewed by Michael Willis from Comcare who later issued an Improvement Notice against the employer dated the 12th September 2014.
39.In the notice Mr Willis described how exclusion zones and pedestrian walkways throughout the workplace were poorly delineated and metal barriers adjacent to the lunchroom were not complete and had openings.
40.If the employer had properly laid out the exclusions zones and walkways with proper barriers Mark Warren could not have entered the no-go zone by simply walking from the lunchroom.
41.I hold a current license to perform high risk work and a heavy vehicle driver’s license.
42.On the 18th September 2014 the employer wrote to me declining my workers compensation claim on the basis that I was guilty of wilful misconduct in driving the forklift in the way that I did and caused the injury to Mark and therefor I caused the stress injury to myself.
43.On the 16th October 2014 Workclaims Australia acting as my industrial agents wrote to the employer requesting that the decision to refuse workers compensation be re-considered on the grounds that there was no evidence to support the finding of serious and unlawful misconduct nor was there evidence to support the finding that I voluntarily submitted to an abnormal risk of injury.
44.That request for review resulted in the employer confirming the original decision and I have been forced to take this action in the AAT.
45.I was initially treated for my stress condition by the GP and a Mental Health Plan was made out for me but I did not get to see a clinical psychologist until June 2015. This was Alison Tennant. I have continued to be treated by her with psychotherapy sessions.
46.I continue to have a range of depressive symptoms and have a high degree of sadness and no desire to get out of bed. I have flashbacks to the incident with Mark and I have bad dreams and have difficulty sleeping. I am hypervigilant always anxious, intolerant and cannot concentrate. I am always tired.
47.I was sent by the employer’s lawyers to see a psychiatrist Dr Gemma Edwards- Smith on the 16th September 2015.
48.I have tried to look for jobs but nothing ever suitable seems to be available and in any event I doubt that I would last at any job at present because of my constant tiredness and fatigue.
49.I remain totally incapacitated for work and have been in receipt of Centrelink benefits since September 2014.
Witness statement of Edward Hartman dated 20 January 2016 (S51 at 339)
This statement reads as follows:
1. I reside at … in the State of Western Australia.
2.I was a supervisor DTM Kewdale, WA part of the respondent's business in WA in August 2014 when the accident occurred involving Aleisha McKenzie driving a forklift and knocking down a fellow employee.
3.I resigned my position effective the 24th October 2014.
4.When Aleisha came back to work after the accident on reduced hours about the 23rd September 2014 I decided to carry out a re-enactment of the way she loaded and drove the forklift on the 14th August 2014.
5.To this end I drove the DTM Linde 2.5 ton fork lift (which sits the driver higher than some other forklifts) to the stack containing the same type of pallets that were involved in the accident and proceeded to pick up two pallets and park the forklift in the warehouse in an open area.
6.I parked the forklift and placed the pallets as high as they were on the day of the accident. I was able to do this on Aleisha's instructions. I then removed the key from the forklift and proceeded to measure the height from the ground level to the top of the last pallet and this came to 1.6 metres.
7.I then asked Aleisha to sit in the forklift holding the steering wheel and I then walked in front of the forklift to the right and left at various distances from the pallet to determine at which point Aleisha would lose sight of me.
8.In a process where Aleisha could see over the pallets directly in front and right to left when looking in that direction, however there was a shadow area of no visibility directly in front of the pallets. This meant that her view was at that point restricted but not obstructed.
9.I have supervised Aleisha in her work for more than 7 years during her employment with the respondent and I have always found her to be a sensible and careful employee and always compliant with safety procedures.
10.With respect to reversing a forklift when loaded in the way this one was on the 14m August 2024, I can say that it was common practice to drive forward in the warehouse, if the load completely obstructs vision then it is necessary to reverse.
Witness statement of Ashley Carnell dated 24 February 2016 (S52 at 340)
This statement reads as follows:
1.My name is ASHLEY ROBERT CARNELL.
2.I am currently employed as the State Manager of Rodney’s Transport situate at 9 Grace Court, Sunshine West, Victoria. In my current role I basically have the overall management of the operations of Rodney's Transport here in Victoria.
3.Prior to my current role I was employed by the Respondent having commenced with K&S Freighters in Victoria in 2003 and then subsequently transferring to Western Australia in or about June of 2013. In Western Australia I was based at the Respondent’s Kewdale site for approximately 18 months which is where the Applicant also worked. I transferred back to Victoria still with K&S Freighters but then left to commence with Rodney’s Transport in January last year.
4.At the Kewdale site there were basically three business divisions of K&S operating from the site being:
4.1.Regal Transport which operated a truck quarantine/wash facility on the site;
4.2.DTM which did loading and unloading out of the site;
4.3.K&S Freighters which onsite did warehousing, handled rail and sea freight, inbound and outbound.
5.I was the Operations Manager on the Kewdale site but in respect of the K&S Freighters operations, not the Regal Operations nor the DTM operations.
6.Whilst personnel on the site may well have been employees of the Respondent, the three businesses were managed separately on-site. Apart from the truck quarantine wash operated by Regal, most of the activities on the site were either under the K&S banner or the DTM banner. Each of those two operations had its own General Managers.
7.In my role as Operations Manager for K&S at Kewdale I would normally report up to the State Manager. This had been John McGlone but as at August 2014 there was no State Manager in situ so l was reporting to a Divisional Manager, Sebastian Hill pending the State Manager’s position being filled.
8.In terms of who reported to me, these persons included Operations Supervisor, Fleet Controllers as well as forklift and truck drivers associated with the K&S operations on site.
9.Aleisha McKenzie was not part of the K&S operations on the site, but rather she was on the DTM side of operations. The Applicant reported directly to Ed Hartman who was involved in the management of the DTM operations on the Kewdale site.
10.Save that I knew who the Applicant was as she worked on the same site as myself, I was not involved in the management and supervision of her, that-being the responsibility of Ed Hartman. Ed Hartman would have the responsibility for the Applicant’s induction, training, instructions and general management and supervision of her work.
11.In respect of the incident which occurred 12 August 2015 in which Mark Warren was injured, I did not actually see the incident occur. Mark Warren was within the K&S side of the operations on site. With respect of the incident on 12 August 2014 I did not actually see this incident. I can’t recall how I found out about it but I can remember being told and immediately running down to the accident scene. When I got there Mark Warren was lying on the ground and the Applicant was next to him. From recollection Barry Shepherd was also there, he being the First Aider.
12.Ed Hartman was not site [sic] that day. From recollection I believe he was on annual leave and away that week.
13.After assessing everything, noting an ambulance had been called and Mark Warren was being cared for, I then called Sebastian Hill to advise that a serious accident had occurred. His advice to me was to keep him in the loop and updated.
14.After Mark Warren had been taken away by ambulance, I spoke with the Applicant and took a Statement from her that day. I believed it was typed by me based on what the Applicant said to me. This Statement is found at T7.
15.My recollection is that the Applicant was visibly upset whilst she was sitting next to Mark Warren in the yard at the accident scene whilst waiting for the ambulance.
16.When the Applicant spoke with me some 30 minutes to an hour after the incident l recommended to the Applicant that she should undertake a drug and alcohol test. The basis of my recommendation to the Applicant to do that was that it would then eliminate any drug or alcohol as a contributing factor. Her response to my suggestion was that she did not wish to do a test and she said words to the effect of she “did stuff on the weekend and would come up positive”, I recommended she should take the test to eliminate this as a factor. The Applicant did not say what she had taken nor did she provide any specifics. I recorded in an email three days later reporting to Kaye Evans, the HR Manager, that the Applicant agreed with me to do the test and went out to have a cigarette. I was in the process of ringing rang Sonic Health to make an appointment for the test when the Applicant came back in and told me to stop as she did not want to do it. I advised her I thought she was doing the wrong thing (meaning in not going to a test) but because I was not the Applicant’s direct report, I was not sure what authority I had over her in terms of directing her to undertake a drug and alcohol test so I left it alone. Had it been an employee under my direct supervision and control I would have directed that the test be done immediately.
17.After I took the Statement from the Applicant my recollection is that she went and spoke with Vickie who worked in the office on the site, Vickie being part of the DTM team. After speaking with Vickie for a while, I understand the Applicant then went home for the rest of the day. In the meantime l had left the site to go to the hospital to collect Matt who had gone to the hospital with the injured worker. I did not see the Applicant leave the site.
18.After taking the Statement from the Applicant I did speak with my Manager, Sebastian Hill. He advised me that I should have required the Applicant to undertake a drug test but I did not think I was able to do so because she was not an employee under my management I can recall saying to the Applicant that if she were my staff she would not have had a choice.
19.Subsequent to taking the Statement and speaking with Sebastian Hill, I really ceased to have any further involvement in the matter save for assisting in the investigation report, I certainly had no involvement in terms of any subsequent requests which may have been made of the Applicant for drug and alcohol testing nor did I have any involvement as regards discussions between the Respondent and the Applicant concerning her ongoing employment with the Respondent. I believe Kay Evans from Human Resources managed that process. I certainly advised Kay Evans about what the Applicant had said to me about the drug and alcohol test and I also provided to Kay a copy of the Applicant’s Statement. I was part of a team of three who undertook an internal investigation on behalf of K&S into the incident. I did this in conjunction with Ken McCallum from the Regal side of operations and also Matt Thomas from K&S Fleet Control. A copy of the investigation report I understand has been filed in the matter.
20.I believe the Statement from the Applicant was taken by me within 30 minutes to an hour of Mark Warren being taken to hospital. My preference is always to ensure where possible a statement is taken as quickly as possible after an incident and in recording what is said for a statement I try to do so in the person’s own words.
21.There was nothing in my observation of the Applicant to indicate that she was affected by drugs or alcohol.
22.I am adamant that the Standard Operating Procedure (T5) provides that a forklift driver should not travel forward with a load obstructing the driver’s vision. In circumstances whereby vision is impaired, the forklift should be reversed. There is also a requirement that the forklift driver give way to pedestrians at all times. In the event that an employee or someone enters an operational area, forklifts are to cease operation immediately until the operational area is free from personnel. It is my view the Applicant should not have been driving forward. If there is the slightest doubt about the ability of the driver to see in a forward driving position, then the forklift ought be reversed.
23.I confirm that I am prepared to give evidence at the Hearing of this matter by telephone.
MEDICAL EVIDENCE
To the extent that any medical evidence might shed light on the events of 12 August 2014, it is provided below in edited form.
As the nature or cause of Ms McKenzie’s stress related injury is not in dispute, evidence that focuses solely on that issue is not highlighted below, although it has been reviewed by the Tribunal.
Report of Alison Tennant, Clinical Psychologist, dated 15 June 2015 (S47 at 246)
This report reads as follows:
…
Aleisha had an accident at work 10 months ago where she knocked over a man while driving a forklift vehicle. She maintains that the victim of the accident and her colleagues at work support her claim that the accident was not her fault, however, she was subsequently dismissed by one of the bosses who she believes did not like her. Not only has she been traumatised by the accident itself, but Aleisha feels that she was offered no support, that she has been unfairly dismissed and that her workplace of 8 years, where she has been very happy failed in its duty of care to her. Court cases and Workers Compensation claims have ensued and after a harrowing few months she settled for a payout. She was advised to see a psychologist prior to the hearing next month.
...
Report of Alison Tennant, Clinical Psychologist, dated 20 August 2015, addressed to Workclaims Australia
This report reads as follows:
…
Background
According to Aleisha, on the 12th August 2014, she was driving a forklift at her workplace, K&S Freighters, when a co-worker, Mark Warren, walked into her path. Aleisha did not see him as her vision was restricted by the pallets on the forklift. She was also not expecting to have to look out for pedestrians as there was supposed to be an exclusion zone around her. The forklift struck Mark and he was physically injured in the accident. Aleisha immediately jumped off the forklift, called for help and then administered First Aid as best she could. She also called an ambulance and once it came she smoked a cigarette in the rest area to try to calm herself, while talking to some of the staff. After giving a statement she went home as she was not feeling well. She drove herself home, very slowly as she was in a state of shock and nobody offered to take her. She received no calls from work to find out if she had arrived home safely. The following day, she was booked off work by her doctor for a week and she sent a text to inform the office of this. In a series of missed communications, Aleisha was not aware that the drug test that she had agreed to take on the day of the accident was scheduled for that day. Once she was aware of it, despite requesting that it be rescheduled, she was accused of refusing to take it. Aleisha became extremely stressed dealing with all of this and was booked off work for another week and she lodged a compensation claim for workers' stress, whereafter she returned to work under a rehabilitation progamme. Aleisha was dismissed from work on the 16th of September. The reason given was Gross Misconduct. Aleisha contested this and legal proceedings ensued.
…
Symptoms Experienced
…
Aleisha says she is having a lot of difficulty sleeping and is constantly tired. She feels depressed and sad and has no desire to get out of bed. She says she is hypervigilant, anxious, intolerant, has poor concentration and feels unbalanced. She said she still has flashbacks to the accident, nightmares and dreams about death. She has sickening feelings of guilt about the accident, even though Mark Warren, the man who was struck by the forklift she was driving had told her it was not her fault and that he should not have walked out in front of her. She has withdrawn and isolated herself, tending to stay at home far too much. The only times she gets out is to take her dog for a walk, to visit her mother and to attend appointments.
…
Causation
Aleisha said that before the accident at work on 12th August 2014, she used to have a positive, can-do attitude but is now suffering from all the symptoms mentioned above. Apart from experiencing symptoms of Post Traumatic Stress related to the accident itself, she feels that she has been treated very badly by her employers, who, in her opinion, failed in their duty of care to her. Immediately after the accident, nobody came to her assistance. She organised all the first aid to Mark, as best she could and once he had been tended to she was left feeling shocked, emotional and fragile. Nobody inquired about how she was feeling, she was not offered a lift home and nobody tried to contact her to find out how she was or if she had got home safely. She believes that her employers, namely Kaye Evans from HR and Trevor Phyllis, the Union recruiter, blame her entirely for the accident, despite there being clear indications that K&S Freighters failed to enforce the Health and Safety Procedures they should have, as evidenced by the Safety Alert prepared by Ken McCullum, which resulted in an immediate improvement notice by Comcare. Her immediate boss, Ed Hartman, is supportive of her, however he was not there at the time and so does not seem to have any influence on her case. She also feels that she had been bullied and harassed from the start because she has never been interested in becoming part of the TWU.
….
Report of Dr Gemma Edwards-Smith, Consultant Psychiatrist, dated 9 October 2015
Relevantly, this report reads as follows:
…..
HISTORY
Ms McKenzie is a 35-year-old woman who lives in Osborne Park with her long-term de facto partner. They live in premises above the business of which her partner is a director.
Ms McKenzie is presently unemployed and is receiving Centrelink benefits. She reported current significant financial pressures, unemployment, and also that her partner is also experiencing significant financial stressors due to the downturn in his business.
The history of workers’ compensation claim pertained to her employment with K&S Freighters. She said that she had worked for the company for almost 8 years as a truck driver. In recent years she had worked at the Kewdale facility, which she described as a warehouse and fright [sic] terminal. She drove trucks in the metropolitan area, and was also a forklift operator: loading and unloading the trucks. She usually worked Monday through Friday full-time. She said that she had generally liked working for the company, and that she had a good relationship with her immediate boss, although she reported that she had experienced some stressors related to her decision not to join the union, and negative comments made by union members, particularly one of the other workers regarding her receiving these benefits while not being a member of the union.
On 12th August, 2014, there had been an incident at work. Ms McKenzie said that she was driving a forklift, as usual. She recalled that it was a very busy day with a lot to do, but that she had been driving the forklift as usual. Unbeknownst to her, one of the other workers, whom she said is a truck driver, had walked in front of her forklift. She said that she did not see the man and that he was apparently walking through an exclusion area, but that she sounded her horn, and apparently then hit him. She said that she had reversed and seen the man on the ground, and that she felt shocked that she couldn’t believe what had happened, and that she jumped off the forklift. She said that she had panicked, run to the office and a supervisor, who was on the phone, said to wait a minute and so she ran to the lunch room. She had called an ambulance, administered first aid, and had waited with the man until the ambulance arrived some three quarters’ of an hour later. She then broke down, feeling upset and shocked that she had hit someone. She recalled that she had told people to take photographs of the incident at the time, and had felt unwell and nauseous. She had met with one of the supervisors and provided a statement about what had happened, and left work feeling unwell.
Ms McKenzie recalled that she felt that no one had cared about her or offered her support, and that she had somehow drive home feeling very shocked, and thinking constantly that she had hit someone, although he should not have been in that area.
Apparently the man had suffered from a fractured leg. She was unable to see a doctor that day, but had seen a general practitioner the following day and was advised to take time off work. She said that she had experienced difficulty sleeping, worrying about the other worker and the whole situation, and she said that she kept having flashbacks of the incident, and upset that she had injured somebody.
She thought that she had been prescribed a sleeping tablet, temazepam, although she did not fill the script initially, but had ongoing symptoms, including sleep disturbance, and had the remainder of the week off. She said that her boss had advised her to put in a claim for workers’ compensation. She had also accessed counselling sessions through the Employee Assistance Programme.
Ms McKenzie said that it had been arranged that she could return to work gradually into the office on light duties. She said that she had felt scared going into work as she had not had any contact with anyone from the office, but that she had gradually felt more comfortable, and had been able to go into the work area. She said that she felt again that there were difficulties with the union members at work, and also that some people had blamed her for the incident. She said that she had been able to do various light office duties, although with no defined role, and she said that by the Friday of that week she was feeling a little more comfortable. She had not been allowed to return to truck driving or forklift duties, but she said that her intention had been to gradually return, certainly at least to truck driving.
She said that Kay Evans from human resources came and that she was given a notice, which Ms McKenzie described as a pending dismissal letter for misconduct. She said that she felt she was accused of deliberately hitting the man. I discussed with her the issue of the drug test. She said that she was not told that she had to go for a drug test, but rather that it was in her ‘best interests’. She said that the day of the incident when she was told that it would be in her interest to go for a drug test, she felt sick and went home. While off work, a letter had been delivered to her mother’s address regarding an appointment for a test, and by the time she received the letter the time for the appointment had passed. She said that she had called the office to ask for the appointment to be rescheduled, but no one had called her back or discussed it with her further, until she received the letter. She said that she had written a reply, but in response was indeed terminated from employment.
She had pursued a claim for unfair dismissal. The matter had progressed until she eventually settled the matter in April, 2015. The workers’ compensation case, she said, was an ongoing dispute, and she was receiving assistance from her lawyer with this matter.
…
CONSIDERATION
The Meaning of the term “Serious and Wilful Misconduct”
Having summarised the evidence as above, the Respondent then advances the following conclusions in relation to whether or not Ms McKenzie engaged in serious and wilful misconduct:
9.1Whether or not the Applicant suffered an ‘injury (other than disease) as asserted by the Applicant’s closing submissions or suffered an ailment to which the incident significantly contributed resulting in a ‘disease’ injury is of little moment. The Respondent has accepted that the incident resulted in an injury; and in the Applicant’s incapacity for work (see s. 14 of the SRCA).
9.2The issue is whether in the operation of the forklift the Applicant was in breach of the Respondent’s guidelines pertaining to the safe operation of the forklift by exposing Mark Warren and indeed herself to injury.
9.3It is not to the point that Mr Hartman alleged that it was common practice to drive the forklift forwards rather than in reverse unless the vision of the driver was ‘completely obscured’ by the load. The question is if the Applicant’s forward vision was ‘obstructed’ then the guidelines required the use of the reversing technique.
9.4The suggestion that the guidelines were ‘not a term of the employment contract or a Policy binding on the Applicant’ and, therefore, incapable of evidence of intent, is absurd. The Applicant, as did Mr Hartman and any other employee of the Respondent, has a statutory duty pursuant to s. 29 of the WHS Act to:
“(a) take reasonable care for his or her own health and safety; and
(b)take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
(c)comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act”.
9.5The finding of an ‘internal investigation’ relied on in the Applicant’s submissions is not germane to the Tribunal’s exploration of the evidence and the findings necessary to be made in the Tribunal as to the ‘correct and preferable’ decision. The ‘internal investigation’ did not, for example, ‘test’ the Applicant’s many accounts as to the facts and circumstances by cross examination and such evidence that it did rely on was not given on oath or affirmation. The same observation can be made concerning the Comcare investigation.
9.6In any event, having regard to the term ‘impaired vision’, the inference to be drawn from the use of such term in its use in context is that the Applicant couldn’t see. If the Applicant couldn’t see then she was required to proceed in reverse and did not.
9.7The fact that an application to Fair Work Australia is settled is not evidence pointing an admission that the Respondent was wrong in asserting that the Applicant engaged in serious misconduct for the purposes of dismissing the Applicant. Such settlement is not evidence for the purposes of s. 14 of the SRCA that the Applicant did not engage in serious and wilful misconduct.
9.8Proceedings involving courts and tribunals are settled for a wide range of reasons that have nothing to do necessarily with the relative merits of either parties’ case.
9.9The fact that the Applicant sounded the horn on exiting the warehouse and drove slowly is indicative of the fact that the Applicant well understood that driving safely and in a manner consistent with the safety guidelines was required. She clearly in doing so and indeed admitted so, is evidence of her cognition of the Respondent’s guidelines and with obstructed vision cognisant of the requirement in the interests of safety to proceed in reverse.
9.10The Applicant hadn’t established contact with ‘Tony’ for example but proceeded forward regardless considering the various accounts given by the Applicant. The guidelines, and indeed common sense, given the potential for injury to herself, of others and damage to property demanded she cease operations immediately: she didn’t and in failing to stop was indifferent to the significant risk of harming herself, of others as well as damaging property.
9.11It needs be borne in mind that Mr Warren had crossed from the Applicant’s left from alongside the containers forward of the Applicant, crossing the apron in front of the Applicant and was hit by the front right hand corner of the pallet being driven by the Applicant which had traversed from the warehouse to the point of impact. If the Applicant was travelling at a slow speed (as she said in her evidence) then if her vision was unobstructed or even restricted as she claimed why did she not see Mr Warren given the time that elapses between her leaving the warehouse and the point and location of impact? The inescapable conclusion is that the Applicant’s vision was in fact obstructed and she should not have been driving the forklift in the manner she was.
9.12Consideration of the authorities supra applied to the facts establishes as a question of fact and law that the Applicant engaged in serious and wilful misconduct because she acted in disregard of any consideration whether her acts or omissions may well cause injury to herself, of others as well as damaging property (Sawle).
9.13The Applicant’s acts and omissions were deliberate not merely a thoughtless act on the spur of the moment (Johnson: per Lord Loreburn at 411).
9.14By analogy where a driver is approaching a stop light or sign deliberately having the opportunity to stop and doesn’t – the Applicant could have and should have stopped until she got ‘eye contact’ with ‘Tony but didn’t: then she has engaged in serious and wilful misconduct ((Karim v Poche Engineering: per DP Roche; applying Levin v Moulhis). Similarly the approach adopted by Senior Member Kenny in Re Kemp and K&S if directly applied to the extant facts concerning the incident would result in a finding of serious and wilful misconduct.
9.15Presently all of the authorities that have to be considered and applied in respect of whether serious and wilful misconduct has been committed requires regard to the WHS Act, particularly as to a ‘Category 2’ offence, which by necessary implication, treats a breach of the duties imposed by that act as serious misconduct.
In written submissions in reply dated 29 March 2016 at paragraphs 3-5, Mr Mullally, for Ms McKenzie, responded to the above submissions from the Respondent as follows:
Firstly: the respondent has not identified what evidence of the applicant it relies upon to enable a positive finding to be made that she had knowledge of the risk of injury and in the light of that knowledge proceeded to continue her work with the forklift without regard to that risk. In the applicant’s submission the respondent is drawing a long bow to make the nexus between knowledge and the decision to proceed. The applicant’s case is that she drove the forklift on that day in the same way that she always worked.
Secondly: the applicant was not convicted of any offence under the WH&S Act and therefore it is wrong and inappropriate of the respondent to rely upon that assertion to prove serious and wilful misconduct. It submits in effect in paragraph 9.15 that by necessary implication a Category 2 offence will occasion a finding of serious misconduct. Whether that submission is right doesn’t matter, the fact is that the applicant has not been charged with an offence or convicted of one. It should be noted that Comcare carried out and inspection and provided a report: R2 p159-163, and no charges arose out of that inspection.
Thirdly: there was nothing clandestine about the re-enactment conducted by Mr Hartman. The suggestion is that it took place after the applicant’s employment was terminated. Mr Hartman: R2 S51 states that it was when the applicant came back to work after the accident on reduced hours... The date he nominates is obviously incorrect. According to other evidence the date of return of the applicant to work after the accident was the 3rd September 2014: see R2 p 334 and the medical certificates: R1 54. The applicant was dismissed on the 16th September 2014.
CONSIDERATION
Pursuant to section 14(3) of the SRC Act, an employee cannot receive compensation for a workplace injury if that injury arose as a result of the “serious and wilful misconduct” of the employee.
It is not contested that on 12 August 2014 Ms McKenzie suffered a stress related injury while employed by K&S Freighters. That injury arose when Ms McKenzie drove a forklift and collided with her colleague, Mark Warren, who suffered a serious leg injury.
The Tribunal notes that section 3.5 of K&S Freighters Safety Rules specify the following requirements:
·Never proceed forward with a load obstructing your vision – proceed slowly in reverse.
·When approaching corners or blind spots slowdown and sound horn before proceeding – proceed with significant care.
Further, it is noted that this policy is consistent with the national safety regulators guidelines, as follows:
COMCARE – FORKLIFT SAFETY – REDUCING THE RISKS
[At page 20]
o“Seeing clearly
·If the load obstructs your view while travelling up an incline, get another worker to guide you from a safe position. Ensure all other people are in full view at all times. If you lose sight of them, stop immediately.
·Drive in reverse if a bulky load obscures your forward view. However, the load must lead when travelling up inclines. Use another worker, safely positioned, as a spotter in this instance.”
Much of the evidence before this Tribunal focused on whether Ms McKenzie’s view was “obstructed”. In relation to the use of this word, the Tribunal notes the following dictionary definition:
ob·struct
tr.v.ob·struct·ed, ob·struct·ing, ob·structs
1. To block or fill (a passage or opening) with obstacles or an obstacle.
2.To impede, retard, or interfere with; hinder: obstructed my progress. See Synonyms at hinder.
3.To be or get in the way of (a view or something to be seen). See Synonyms at block.
The Tribunal does not interpret the word “obstructed” to mean “completely” blocked or “completely interfered with”. Rather, the Tribunal interprets the word “obstruct” to mean “hindered” or “interfered with” or “blocked” in some way that makes one’s vision “less than preferable or ideal”.
The Tribunal found Ms McKenzie to be a credible witness. The events of 12 August 2014 were clearly traumatising for her (as they would be to anyone in her shoes) and this has resulted in some confusion on her part about what did and did not happen and sometimes differing versions of events. Ms McKenzie was extensively cross examined. The Tribunal does not find there to be any deception on her part of lack of veracity in relation to her evidence before this Tribunal.
In relation to the events in question, on her own undisputed evidence, Ms McKenzie sounded her horn and drove slowly. This is significant for the purpose of any finding in relation to wilful misconduct. Ms McKenzie’s actions are evidence of both a cautionary approach on her part and an awareness of the rules and expectations of her workplace – including, the Tribunal finds on the evidence, awareness that she should not drive if her view was obstructed. In that regard, it is noted that Ms McKenzie attended relevant training courses and safety checks offered by her employer and regular “toolbox meetings” where these requirements and procedures were discussed. The fact that these policies may or may not have been adopted by K&S Freighters is irrelevant. On the evidence, the policies were discussed and Ms McKenzie was aware that driving with an obstructed view was a safety issue. Policy aside, the Tribunal also finds that common sense would dictate that a driver should not continue to drive forward if her vision was, in Ms McKenzie’s own words, “restricted”.
In relation to whether Ms McKenzie’s view was obstructed, as correctly outlined by counsel for K&S Freighters, Ms McKenzie gave evidence to the Tribunal that she was familiar with the heights of various pallets loaded with particular products. On the day of the accident, she was aware that the combined height of the two loaded pallets was 1.6 m (TS: P-20). She also accepted, however, that in determining the total height of the load, the tyres added an additional 15 cm (TS: P-21). Thus, the total height when the forklift was being driven forward was approximately 1.75 m.
In relation to whether Ms McKenzie’s was obstructed in these circumstances, the Tribunal does not accept the evidence of Ms McKenzie’s former supervisor, Mr Hartman, that Ms McKenzie could see unobstructed over her cargo load. Mr Hartman was not present on the day in question and it is evident that, in relation to his re-enactment, his understanding of where Ms McKenzie was sitting in the forklift was quite different from where she herself says she was sitting in the forklift on the day of the accident. As correctly argued by counsel for K&S Freighters, Mr Hartman made estimates in relation to what Ms McKenzie could or could not see in moving forward in circumstances that were not present on the day of the incident. The Tribunal also has some concerns in relation to Mr Hartman’s credibility as a witness. It is not entirely clear why Mr Hartman undertook a re-enactment when he had not been asked to do so in any professional capacity. Further, given his close friendship with Ms Hartman and the clear (and quite understandable) sympathy he had for her in relation to what she had gone through, it is difficult to accept his version of events as entirely objective, unbiased, hence credible. This should not be seen as a criticism of Mr Hartman or his desire to do the right thing for a friend who was clearly distressed and traumatised. Rather, these comments go only toward the weight that can be attached to Mr Hartman’s evidence for the purposes of these proceedings.
In that regard, the Tribunal agrees with the conclusion advanced by counsel for K&S Freighters that Mr Warren had crossed from Ms McKenzie’s left from alongside the containers forward of Ms McKenzie, crossing the apron in front of Ms McKenzie and was hit by the front right hand corner of the pallet being driven by her. Ms McKenzie was travelling at a slow speed. If her vision was not blocked she arguably would have seen Mr Warren given the time that elapsed between her leaving the warehouse and the point and location of impact.
The Tribunal finds that given the height of her cargo load in question and given her own evidence, it is difficult in these circumstances to accept that Ms McKenzie’s view was indeed anything but “obstructed” (ie, that she could not see sufficiently to ensure her own safety and the safety of those around her on the day in question). Had Ms McKenzie’s view not been obstructed she would have seen Mr Warren in front of her and would not, consequently, have hit him.
In relation to this, Ms McKenzie seemed to suggest at the hearing of this matter that, obstruction or no obstruction aside, she may not have seen Mr Warren because, rather than looking ahead, she had diverted her attention towards her driver, Tony, who, she admits, had left his truck and who should could not see.
This response/justification raises some concerns. It is clear from the training Ms McKenzie received that she would have known that a safety requirement is that drivers should stop their vehicle if they have reason to believe someone may be at risk of walking in front of them. It is clear on the evidence that Ms McKenzie’s driver, Tony, had left his truck and that she could not see him. She states:
At the time of exiting the warehouse I was looking at the direction of Tony’s truck and looking to see where he was which meant that my vision was directed away from the area where Mark Warren had entered.
Further, in her application to Fair Work Australia at [3.2] it was stated:
This was clearly an accident. Mark should not have been where he was. He heard the horn being sounded whilst the forklift was being in operation but failed to keep a proper lookout. I was focussed on my driver who had left his truck.
The Tribunal finds that by not stopping her vehicle when she was aware that someone might be in her vicinity, Ms McKenzie increased the risk of injury. Had Ms McKenzie stopped, as common sense would dictate, she would not have hit Mr Warren as she would not have been driving.
In light of the above, the question this Tribunal must answer is whether Ms McKenzie can receive compensation from her former employer for her stress related injury or whether her conduct on the day amounts to “serious and wilful misconduct” as per section 14(3) of the SRC Act, in which case she cannot receive comensation.
It is clear from the jurisprudence in relation to section 14(3) that the term “serious and wilful misconduct” is interpreted as amounting to conduct that is very serious indeed. In effect, for Ms McKenzie to be found to have engaged in serious and wilful misconduct her actions would need to evidence an almost complete disregard for the safety of others with a high risk of probable injury to herself.
In this regard, the Tribunal finds that serious and wilful misconduct is conduct beyond negligence, even beyond culpable or gross negligence. The jurisprudence supports this finding: Karim v Poche Engineering Services [2013] NSWWCCPD 24, citing Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26. The Tribunal also notes the finding in Frederick Charles Adams and Australia Postal Corporation [1993] AATA 355 that for conduct to amount to serious and wilful misconduct, the conduct in question “must be deliberate and not merely a thoughtless act done on the spur of the moment and it must be accompanied by an appreciation of the risk which is involved in it”. The Tribunal also notes that courts and tribunals have applied terms such as “absolute disregard of the lives and safety of many” (Johnson v Marshall Sons & Co Limited [1906] AC 409 (per Lord James at 412-413), “more than negligence, carelessness, or the mere disregard of orders” (Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24), “something intentional” and “something other than mere inadvertence” (Kemp and K&S Freighters Pty Ltd [2011] AATA 312).
This is a most unfortunate situation. A man was seriously injured by a co-worker and that co-worker, in turn, now suffers a stress related injury of a sort that one would expect in the circumstances of this case.
There are many words to describe Ms McKenzie’s conduct on the day of 12 August 2014. “Negligent”, “careless”, “distracted” and “unfocussed” are four that immediately come to mind. These words are not, however, relevant to a finding pursuant to section 14(3) of the SRC Act that Ms McKenzie engaged in “serious and wilful misconduct”. To be found to have engaged in that sort of conduct, Ms McKenzie must be found, in sum, to have acted in a way that was “deliberate” and with an “absolute disregard for the safety of others”.
Ms McKenzie’s actions were clearly horrific for Mr Warren (a fact Ms McKenzie herself well and truly recognises - as evidenced by the state of her own mental health following the accident in question). But do her actions constitute “serious and wilful misconduct”? Should she have stopped once it was clear that her vision was less than ideal and that her driver Tony was not visible? Yes. Did her training tell her to do so? Yes. Would common sense tell her to do so? Yes. Is proceeding in those circumstances “serious and wilful”? No. This conduct amounts to negligence and misconduct. It cannot, however, be found to be “wilful”. What happened typifies a most unfortunate set of circumstances. Ms McKenzie’s view was certainly obstructed, but not so much that she personally felt she could not see enough to drive safely towards her driver, Tony. In the circumstances, she sounded her horn and drove slowly, evidencing an appreciation of the need to safeguard others and herself. She was then distracted by her inability to see her driver Tony. Mr Warren then entered into a zone that he should not have entered into and crossed her path, resulting in him being hit by Ms McKenzie. This was disastrous for him but not evidence of deliberate conduct with an absolute disregard for the safety of others on her part.
Had Ms McKenzie not sounded her horn and not driven slowly or had she known that Mr Warren was in front of her in a zone where he should not have been but continued to drive forward in any event, then that, arguably, would amount to serious wilful conduct. But that did not happen here.
There was some evidence before this Tribunal that Ms McKenzie had failed to take a drug test after the event in question. Had she done so and had she failed that test, the Tribunal would have no hesitation in finding that she acted deliberately and with the knowledge that her actions absolutely disregarded the safety of others and indeed her own personal safety. But that did not occur here and the fact that she did not take a drug test is irrelevant to these proceedings.
What occurred here was certainly careless and negligent conduct resulting in harm to others and to Ms McKenzie. That, however, is not the test to be applied by this Tribunal. It is arguable that in doing what she did, Ms McKenzie “voluntarily and unreasonably submitted herself to an abnormal risk of injury” as per section 6(3) of the SRC Act, but that argument was not ultimately put to this Tribunal. What was argued was that Ms McKenzie’s actions amounted to “serious and wilful misconduct” as per section 14(3) of the SRC Act.
As careless as Ms McKenzie’s actions were on the day in question, on the evidence before it and having reviewed the jurisprudence relevant to a determination of this issue, the Tribunal does not find that Mr McKenzie’s actions amounted to “serious and wilful misconduct” as that term is used in section 14(3) of the SRC Act.
In the circumstances, the Tribunal finds that Ms McKenzie is entitled to compensation as per section 14 of the SRC Act for a stress related injury that occurred on 12 August 2014 when the forklift she was driving hit her colleague, Mark Warren.
DECISION
For the reasons outlined above, the Tribunal sets aside the decision under review and, in substitution therefor, decides that K&S Freighters is liable to pay compensation to Ms McKenzie in accordance with Section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of a stress related injury sustained on the 12 August 2014.
The matter is remitted to K&S Freighters for assessment of the amount payable to the Ms McKenzie on the basis of this decision.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall .............[sgd D Brodie].........................
Administrative Assistant
Dated 29 April 2016
Date of hearing 8 March 2016 Advocate for the Applicant Mr Mullally
Workclaims AustraliaCounsel for the Respondent Mr J Wallace Solicitors for the Respondent Clarke Legal
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