McKenzie and K & S Freighters Pty Limited (Compensation)

This matter concerned an application for review of a decision to refuse compensation to Aleisha McKenzie, the applicant, who suffered a stress-related injury following a workplace accident. The applicant was driving a forklift at K&S Freighters when she collided with a colleague, Mark Warren, who walked into her path. The applicant immediately administered first aid and called for an ambulance. Subsequently, the applicant experienced significant stress and was booked off work, lodging a compensation claim for a psychological injury. Her employer subsequently dismissed her for gross misconduct, which she contested.

The primary legal issue before the Tribunal was whether the applicant's conduct in driving the forklift constituted "serious and wilful misconduct" under section 14(3) of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), thereby disentitling her to compensation. This required the Tribunal to determine if the applicant had failed to follow safe forklift driving procedures, driven with an obstructed view, or refused a drug test, and if any such actions amounted to serious and wilful misconduct.

The Tribunal found that the applicant was entitled to compensation. It reasoned that while the applicant's view was restricted by the pallets on the forklift, she was still able to see ahead and to the side. Furthermore, the colleague who was injured had walked into a designated exclusion zone and had seen the forklift and heard its horn. The Tribunal also noted the lack of a spotter and the applicant's location within the warehouse. Crucially, the Tribunal found no evidence that the applicant had intentionally accepted a risk or engaged in wilful misconduct. The allegations regarding the drug test were also unsubstantiated, with no record of a properly scheduled or offered test.

Accordingly, the Tribunal set aside the decision under review and substituted a decision that K&S Freighters was liable to pay compensation to Ms McKenzie under section 14 of the SRC Act for a stress-related injury sustained on 12 August 2014. The matter was remitted to K&S Freighters for assessment of the amount payable.