OneSteel Recycling Proprietary Limited v Workers' Compensation Regulator
[2017] QIRC 113
•19 December 2017
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION:
OneSteel Recycling Proprietary Limited v Workers' Compensation Regulator [2017] QIRC 113
PARTIES:
OneSteel Recycling Proprietary Limited
Appellantv
Workers' Compensation Regulator
RespondentCASE NO:
WC/2016/208 PROCEEDING:
Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:
19 December 2017
HEARING DATES:
HEARD AT:
19 June 2017
30 August 2017
22 and 23 November 2017Brisbane
MEMBER:
Vice President Linnane ORDERS:
1. That the appeal is upheld.
2. That the decision of the Regulator made on 30 September 2016 is set aside.
3. That in lieu of the Regulator's decision of 30 September 2016, the decision of Arrium/One Steel Workers' Compensation Queensland of 17 March 2016 be confirmed i.e. that the claim by Mr Thomas for workers' compensation be rejected as his injuries were caused by his serious and wilful misconduct.
4. The Regulator is to pay the Appellant's costs of, and incidental to, the appeal.
CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - employer appellant - where worker suffered physical and psychiatric injuries when involved in a physical altercation with another worker - worker's injuries accepted by Regulator - whether worker disentitled to compensation because his injuries were caused by his serious and wilful misconduct - where assailant had been taunted by worker over period of time - on day of assault worker had engaged in serious and wilful misconduct in entering an exclusion zone where assailant was operating a large machine - worker also engaged in serious taunting of assailant just prior to assault - assailant expressed anger at taunting - worker persisted in taunting assailant - assailant's reaction to previous taunting was to just walk away - whether assailant's previous reaction resulted in worker not being alert to the potential assault - employer had policies which worker was aware of about fighting in the workplace - held worker had engaged in serious and wilful misconduct disentitling him to compensation.
CASES: Workers' Compensation and Rehabilitation Act 2003 ss 32, 130
State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
Australia Meat Holdings Pty Limited v Q-COMP (2007) 186 QGIG 527
Boral Resources (Qld) Pty Ltd v Pike [1992] Qd R 25
Duckworth v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 112
Duckworth v Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 003APPEARANCES: Mr G. O'Driscoll of Counsel, instructed by HWL Ebsworth Lawyers for the Appellant.
Mr S. Sapsford of Counsel, directly instructed by the Respondent.Decision
[1]This is an appeal by OneSteel Recycling Proprietary Limited (Appellant) against a decision of the Workers' Compensation Regulator (Regulator) made on 30 September 2016. The decision of the Regulator, the subject of this appeal, was to set aside the decision of Arrium/OneSteel Workers' Compensation Queensland (Self-insurer) to reject an application for compensation of Kenneth Thomas (Claimant) pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Act). The Claimant was employed by the Appellant at the relevant time.
[2]On or about 5 February 2016 the Claimant lodged an application for compensation with the Self-insurer alleging that he had sustained physical and psychological injuries on 5 February 2016 whilst in the course of his employment with the Appellant. In a decision dated 17 March 2016 the Self-insurer rejected the Claimant's application for compensation on the basis that he did not sustain an injury within the meaning of that term in s 32 of the Act. In its decision the Self-insurer determined that the Claimant's personal injuries were caused by his serious and wilful misconduct such that compensation for those personal injuries was not payable by operation of s 130 of the Act.
[3]The Claimant sought review of the Self-insurer's decision to the Regulator and the Regulator, on 30 September 2016, set aside the Self-insurer's determination and substituted a decision that the Claimant's application for compensation was one for acceptance.
[4]It is against that decision of the Regulator that the Appellant now appeals.
Onus of Proof
[5]The hearing of the appeal was conducted as a hearing de novo. In this case it is the employer that is the Appellant and the decision being appealed against is a decision to accept the claim for compensation. The Appellant/employer therefore bears the onus of proving, on the balance of probabilities, that the claim is not one for acceptance: see State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne[1].
[1] State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447.
[6]Thus, the Appellant/employer must prove that the Claimant did not sustain an "injury" within the meaning of the Act at the relevant time.
Relevant Legislation
[7]Section 32 of the Act relevantly provides:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if -
(a)for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
(b)for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.
…"
[8]Section 130 of the Act relevantly provides:
"130 Injuries caused by misconduct
(1)Compensation is payable for an injury sustained by a worker that is caused by the worker’s serious and wilful misconduct only if -
(a)the injury results in death; or
(b)the insurer considers that the injury could result in a DPI of 50% or more.
…
(2)In this section -
serious and wilful misconduct of a worker does not include conduct engaged in at the express or implied direction of the worker’s employer."
[9]The grounds of appeal as outlined in the Appellant's Statement of Facts and Contentions relate only to the applicability of s 130 of the Act.
Issue for Determination
[10]The issue for determination in this appeal is whether or not the injury sustained by the Claimant was caused by his serious and wilful misconduct.
Evidence
[11] The Appellant relied upon the evidence of the following witnesses:
· Sam Tasi, a co-worker of the Claimant and the person who assaulted the Claimant on 5 February 2016;
· Hemi Brownlie, a co-worker of the Claimant and a witness to events in the clock-off room, the events leading to the assault and the assault itself;
· Mark Williamson, the Maintenance Leading Hand on 5 February 2016 and the person in charge of the shift at clock-off time that evening, and a witness to the actual assault;
· Brett Hynes, the Appellant's Operations Manager at its Hemmant site on 5 February 2016;
· Geneva Crawford, a co-worker who witnessed the "line of fire" incident on 5 February 2016, the events in the clock-off room, the events leading to the assault and the assault itself;
· Paul Jones, a co-worker of the Claimant who had, in the months prior to the assault, warned the Claimant about the likely consequences of the manner in which he interacted with Mr Tasi; and
· Jordan Kassey, a co-worker of the Claimant who witnessed the events in the clock-off room on 5 February 2016, the events leading up to the assault and the assault itself.
The Regulator relied on the evidence of the Claimant, Kenneth Thomas.
[12]On 5 February 2016 the Claimant was assaulted by Mr Tasi, a co-worker, and he sustained the following injuries:
·a physical injury diagnosed by his General Medical Practitioner, Dr Luping Zeng, as facial/chest/neck/arm soft tissue injury; and
·a psychiatric injury diagnosed by Consultant Psychiatrist, Dr Katrina Samios, as an Acute Stress Reaction.
Evidence of the Natures of both the Claimant and Mr Tasi
[13]The evidence of Mr Tasi's co-workers (other than the Claimant) about his nature was similar. Mr Crawford found Mr Tasi to have a really good nature. According to Mr Kassey, Sam's conduct on the night of 5 February 2016 was definitely out of character and it caught everyone by surprise that he would react in the fashion in which he did. Mr Brownlie described Mr Tasi as a "good guy" and "easy to get along with". Mr Brownlie had not seen him angry before 5 February 2016. He had never seen Mr Tasi have to ask the Claimant to "stop, stop, stop" before that evening.
[14]Mr Jones described Mr Tasi as a "very kind man", a "lovely fellow to work for and with" and that he is a "calm, collected sort of guy". Mr Jones stated that Mr Tasi was a pleasure to work with and he saw Mr Tasi as probably the best worker at the Appellant's Hemmant site.
[15]On the other hand, Mr Jones' description of the Claimant was that he was varied in his approach to people and varied in his moods. He could be friendly but then he could turn very quickly and become very aggressive towards you. The Claimant had reacted in this way towards Mr Jones in January 2016 when his machine had broken down. Mr Brownlie described the Claimant as "just weird" and as having a personality that "was not normal".
[16]The Claimant, contrary to the evidence of all other co-workers, said that Mr Tasi was an "angry person" when he stopped smoking. He was the "angriest person" and he had to stay away from him. The Claimant's evidence on the nature of Mr Tasi is just one of the reasons for my finding that the Claimant's evidence in most respects was not credible.
[17]I accept the evidence of Mr Jones, Mr Brownlie, Mr Kassey and Mr Crawford in finding that, Mr Tasi's conduct on the evening of 5 February 2016, was very out of character and further, that Mr Tasi had been a very good co-worker. I also find that the Claimant was not similarly liked by his fellow workers and that he was prone to taunt and/or bait co-workers, especially Mr Tasi. This aspect of his nature will be dealt with later in this decision.
Evidence of the Relationship between the Claimant and Mr Tasi prior to 5 February 2016
[18]The Claimant and Mr Tasi had worked with each other for approximately three years prior to 5 February 2016. The two men had been employed by the Appellant as excavator operators during that time. Whilst the Claimant asserted that the two men had a friendship, it was clear that no such friendship existed as at 5 February 2016. I formed the view that Mr Tasi had previously simply been a good co-worker when he invited the Claimant to his home earlier in the working relationship. I further formed the view that Mr Tasi did not find the Claimant's conduct (particularly his language) at the workplace to be of a friendly nature.
[19]Mr Tasi did not like the language that the Claimant regularly used. He did not like the Claimant's regular swearing or his regular use of rude words. As Mr Tasi stated, the Claimant would start swearing for no good reason. I accept that the Claimant regularly used the term "fuck you" directed towards Mr Tasi (and others) over that three-year period although the Claimant denied using the term. The Claimant used the term when Mr Tasi would disagree with something that the Claimant was asserting. I accept Mr Tasi's evidence that the Claimant's language caused him to become upset during their working relationship.
[20]I further find that the Claimant did, on an occasion shortly after Mr Tasi's mother had died, make comments to Mr Tasi about him having sex with his mother. I accept that the Claimant saw this as a joke, but such comments are no laughing matter. Such comments are intended to cause the recipient of such comments harm. This type of conduct appeared to be the modus operandi of the Claimant in trying to get a rise from Mr Tasi. I further accept that Mr Tasi was very upset and angry that such comments were made by the Claimant. Mr Tasi responded by telling the Claimant never to mention his mother again. I further accept Mr Tasi's evidence that the Claimant's response on this occasion was "What are you going to do, are you going to smack/slap me" and just laughed. The comments by the Claimant on this occasion are indicative of his modus operando in getting delight from taunting or baiting Mr Tasi and trying to get a rise from him.
[21]On this occasion, like many other occasions, when he was taunted by the Claimant, Mr Tasi's response was to walk away from the Claimant.
[22]As an example of the taunting by the Claimant, Mr Tasi said the two of them could be talking about cars and Mr Tasi would state "this car is better" and the Claimant would disagree and say words to the effect "fuck you that's you know, shit" and stuff like that. I find that the Claimant's use of such language over the three years was the Claimant's attempts to bait Mr Tasi as he knew that Mr Tasi did not appreciate his foul language.
[23]The Claimant would also make comments about his own personal life, especially his sexual life, with his partner. When he attempted to engage Mr Tasi in such discussions Mr Tasi would tell him to stop speaking about such matters as he did not want to hear about them. This however did not stop the Claimant saying such things. Mr Tasi said that such conversations made him feel uncomfortable and that no one wants to hear how another person is having sexual intercourse. Mr Tasi is a private person and a Christian and I find that the Claimant knew that Mr Tasi was offended but such discussions.
[24]Mr Crawford referred to the Claimant's conduct as attempting to "needle" him. He said the Claimant would come across using strong language so that it appeared he had more of a standing in the yard than anybody else. When the Claimant attempted to "needle" Mr Crawford, Mr Crawford was employed at the Hemmant site on a labour hire basis only rather than as an Appellant employee. Mr Crawford said that the Claimant would use "fuck you" to upset people such as himself – the Claimant used this term regularly according to Mr Crawford. The Claimant would do the same to Mr Tasi as the Claimant found him to be of a good nature and he tried to get under his skin. Mr Crawford's evidence was that he personally came to the Hemmant site to do his job and the Claimant would blatantly say to him that he was not doing a good job in an attempt to challenge him. Mr Crawford's evidence was that the Claimant would blatantly swear at Mr Tasi. Other workers confirmed that the Claimant would speak about his intimate personal life with his partner in front of his co-workers.
[25]It was Mr Crawford's evidence that, whilst the Claimant and Mr Tasi seemed to get on, there were lots of times when they did not get along. He saw the Claimant be aggressive towards Mr Tasi a few times. According to Mr Crawford, the Claimant really tested the patience of others by seeing how much they could take. He recalled a particular evening when the Claimant said to Mr Tasi "I've been here longer than you, you don't know nothing". The conflicts between the two were work related and Mr Tasi did not hold a grudge according to Mr Crawford. The Claimant would only use the term "fuck you" privately. He would not say it in the presence of other workers. He used the term to provoke the sort of reaction that he got from Mr Tasi on 5 February 2016.
[26]Mr Jones had observed the interactions between the Claimant and Mr Tasi. He observed the Claimant being quite aggressive towards Mr Tasi calling him names, defamatory names. He had heard the Claimant refer to Mr Tasi as a "OneSteel bitch" on at least two previous occasions.
[27]Mr Tasi did not report to any supervisor any of this taunting or teasing behaviour on the part of the Claimant towards him as he did not think that anything would be done about it. On all occasions prior to 5 February 2016, Mr Tasi had not lost his temper and he had not exhibited any violence in the workplace.
[28]Mr Crawford said that the Claimant and Mr Tasi would have spats and that whilst Mr Tasi did not hold a grudge, the Claimant would walk around with a chip on his shoulder and would bring up issues from the past at a later time.
[29]There was no evidence of any social or work friendship between Mr Tasi and any of the Appellant's witnesses and Mr Tasi had been dismissed from employment with the Appellant shortly after 5 February 2016. Those former co-workers had nothing to gain by giving the evidence they did about the natures of both the Claimant and Mr Tasi or about their interactions prior to 5 February 2016. The only allegation of friendship came from the Claimant which was denied by Mr Tasi. I found the evidence of the co-workers in this regard to be persuasive. Such evidence confirmed my view of both the Claimant and Mr Tasi in the witness box.
Events of 5 February 2016
[30]Line of Fire Issue: At the Toolbox Meeting which commenced at 1:45pm on 5 February 2016, Mr Tasi was allocated to a specialist machine for the job he was to perform during his shift on that day. The Claimant however also wanted that machine for the job he was allocated to perform and came to Mr Tasi, prior to actually commencing work that day, saying that he wanted to use the particular machine that Mr Tasi had been allocated for the shift.
[31]When the "line of fire" incident occurred (sometime between 2:00pm and 3:00pm) it was apparent that Mr Tasi had commenced the operation of his machine. Mr Tasi's evidence was that he was loading containers when he noticed the Claimant walk towards his machine. The Claimant went into the exclusion zone around Mr Tasi's machine i.e. an area where no person was allowed to enter whilst a machine was in operation. This was a safety issue and was referred to as entering the "line of fire" by the workers.
[32]Both the Claimant and Mr Tasi received training in the "line of fire" policy and how to carry out work tasks safely. No person was allowed to enter the "line of fire" area without making radio contact with the operator of the machine so that the operator could make the area a safe zone to enter. The machine that Mr Tasi was operating on that shift was a 35 tonne machine with a reach of 14 metres in length. Mr Tasi's evidence was that the size of the machine was about three times the size of Court Room 21.01 in the Commission. On 5 February 2016 Mr Tasi's job was to sort steel loads and he was loading storage containers. The exclusion zone for this machine was the length of the actual arm on the machine plus three metres i.e. 17 metres.
[33]Whilst Mr Tasi was operating the machine, the Claimant entered his "line of fire" and the Claimant walked past Mr Tasi and raised his middle finger at Mr Tasi. Mr Tasi's evidence, which I accept, was that the Claimant had never given him such a gesture before and he had never come into his "line of fire" previously. Under cross-examination Mr Tasi said that the Claimant had entered his "line of fire" whilst he was slewing his machine around. Mr Tasi said that he was unaware that the Claimant was in his "line of fire" as he was loading a container at the time, grabbing shreds and putting them into the container. Mr Tasi's evidence was that the Claimant was in danger because when he slew around, the Claimant was underneath where he was working.
[34]Whilst the Claimant was in his "line of fire", Mr Tasi was forced to stop operating his machine until the Claimant was out of his "line of fire". It was only at this time that Mr Tasi could recommence operating his machine. According to Mr Tasi, the Claimant just walked into his "line of fire" and continued then to walk out of it.
[35]I do not accept the Claimant's evidence in respect of this issue. At the time of this incident Mr Tasi had commenced work. He had commenced operating his machine. The Claimant, on the other hand, had not commenced work on that shift. Both had attended the Toolbox Meeting at 1:45pm yet Mr Tasi could commence work well prior to the Claimant following the Toolbox Meeting. The Claimant disputed going into Mr Tasi's "line of fire". The Claimant disputed that Mr Tasi had commenced to operate his machine. In examination-in-chief the Claimant denied walking into Mr Tasi's "line of fire" stating that at no stage did he find himself in the "line of fire" with respect to Mr Tasi's machine.
[36]Under cross-examination the Claimant continued to deny going into Mr Tasi's "line of fire" during that shift. The Claimant was then referred to a Statement he provided to Shine Lawyers who apparently are acting for him in a personal injuries action. This Statement was provided by the Claimant on 16 June 2016 (Exhibit 10) and the Claimant has signed the document. In that Statement the Claimant states:
"I approached Sam in the HD Liebherr and contacted him via the radio to ask him if I could have the machine. Sam threw his arms in the air and gestured for me to use the Quick Hitch machine that he had been allocated. We did both exchange hand gestures, which for me was to express my displeasure at Sam using the machine that I had been allocated. Sam then moved the machine's grab into the stockpile, which cleared the path from where I was standing to the Quick Hitch machine. I interpreted this as Sam making safe my transfer to the Quick Hitch machine and, as such, I began to walk directly towards the machine. Sam then moved the machine's grab from the stockpile which put me inside the line of fire, or exclusion zone. I immediately began running to quickly remove myself from the exclusion zone that I had unintentionally found myself in."
[37] The Claimant's response was that he did not recall making that statement.
[38]Mr Tasi did not report this breach of the "line of fire" Cardinal Rule to any supervisor.
[39]Mr Crawford said that sometime between 2:00pm and 3:00pm that afternoon he observed an interaction between the Claimant and Mr Tasi. He said that Mr Tasi was fully operating his machine, that Mr Tasi had done his pre-checks and was on the belts. According to Mr Crawford, Mr Tasi had close to five grabs in the container on his machine at a time when he saw the Claimant walk down lane 4. At this time he saw Mr Tasi in the cab of his machine. Mr Crawford was unable to hear what the two of them were saying. He also saw Mr Tasi's agitated reaction to the Claimant's conduct. At one point the Claimant just "pulled the middle finger straight" at Mr Tasi whilst he was in the cab of the machine. After that the Claimant just walked past the machine without waiting for Mr Tasi to make the area safe.
[40]I find that sometime after 2:00pm on 5 February 2016, the Claimant entered Mr Tasi's "line of fire". I further find that the Claimant's entering into Mr Tasi's "line of fire" was deliberate rather than inadvertent or unintentional. The Claimant was angry that Mr Tasi was operating the machine that he wanted. I further find that the Claimant took no steps to avoid entering Mr Tasi's "line of fire". I further find that this conduct on the part of the Claimant was "serious and wilful" and in breach of the Appellant's Cardinal Rules. I further find that Mr Tasi was extremely upset at the Claimant's conduct in placing himself in an unsafe situation and the Claimant was aware he was extremely upset. At the time of this incident the Claimant should have been performing his own duties for the shift. Instead he was wilfully putting himself in danger and causing Mr Tasi problems.
[41]Interaction between the Claimant and Mr Tasi in the Clock-off Room: Mr Tasi's account of the interaction in the clock-off room was that he was just sitting there playing with his phone and waiting for 9:45pm to arrive so that he could clock-off. The Claimant then started saying things like Mr Tasi was just the fucking supervisor and that he thought that he ran everything. Mr Tasi saw this as the Claimant abusing him. Mr Tasi said that he was in the clock-off room at least five minutes prior to clock-off time and the Claimant was sitting next to him. The one thing that the Claimant appeared to recall accurately was that he entered the clock-off room at 9:42pm on that evening. I do not accept that evidence as the events that unfolded, according to the Claimant, would have taken longer than 3 minutes. I prefer the evidence of others that workers were in the room some five to ten minutes prior to clock-off i.e. between 9:35pm and 9:40pm.
[42]Mr Tasi stated that he was getting very upset with the Claimant's comments and he said that the Claimant was aware that he was very upset. Mr Tasi said that he had stated to the Claimant to "shut the fuck up" as he was getting so upset. Mr Tasi said that he didn't know what started the Claimant off as he didn't think he had done anything wrong.
[43]Under cross-examination Mr Tasi said he was not listening to the discussion around the table initially. It was only when the Claimant commented that Mr Tasi thought he was the "fucking supervisor" that he started to listen. The Claimant said words directed to Mr Tasi such as "you're a fucking supervisor" and "you think you run the fucking yard". In addition to those responses, Mr Tasi ultimately said to the Claimant "you're not normal".
[44]Mr Brownlie's account of what went on in the clock-off room that evening was that the group of workers were awaiting clock-off time and were giving each other grief about a new night shift supervisor job that was coming up. Clock-off time was 9:45pm. According to Mr Brownlie, the workers were in the room five to ten minutes prior to clock-off time i.e. 9:35pm to 9:40pm. There was general bickering between all of the workers, "just fun and games" and then it got pretty serious between the Claimant and Mr Tasi. The Claimant was saying to Mr Tasi that he would be the best night shift supervisor and Mr Tasi responded by saying "shut up" or "stop". The Claimant however just kept going. It was clear that Mr Tasi was getting very upset and getting angry.
[45]Under cross-examination, Mr Brownlie said that Mr Tasi was getting aggressive in the clock-off room when telling the Claimant to "stop". Eventually Mr Tasi said to the Claimant "you're not normal" and the Claimant said to Mr Tasi "why are you getting angry".
[46]The heated interaction between the Claimant and Mr Tasi in the clock-off room that evening resulted in all the other workers in the room stopping talking amongst themselves and remaining quiet.
[47]Mr Crawford said that the workers were sitting down around the table ready to clock-off. Mr Tasi and the Claimant were not getting on together. He referred to the "tonality" of the Claimant's language which was directed at Mr Tasi, and that the "agitation", body posture and body language of Mr Tasi was intense. The Claimant's "tonality" was sarcastic and was in the form of "cheekiness". The Claimant did not start getting aggressive until Mr Tasi told him to shut up. According to Mr Crawford, the Claimant was telling Mr Tasi, in a sarcastic manner, that he should be supervisor in the yard because of the way he directs people. On this occasion Mr Crawford said that Mr Tasi did not walk away he just kept telling the Claimant to "shut up". Mr Crawford said that the Claimant then said to Mr Tasi "you're a OneSteel bitch" in an aggressive manner.
[48]The remainder of the workers appeared concerned about the interaction between the Claimant and Mr Tasi and they became silent. Mr Crawford was so concerned at this time that an altercation would occur in the clock-off room that he intervened. He said he could see the issue escalating given his previous employment as a security officer and a bouncer. He intervened by asking the Claimant and Mr Tasi to stop and this intervention succeeded whilst they were in the clock-off room. Mr Crawford said that the Claimant, in calling Mr Tasi a "OneSteel bitch", triggered something off badly in Mr Tasi. Mr Tasi became very angry and he thought Mr Tasi would do something. This was why he went over and told them both to stop.
[49]Mr Kassey was also in the clock-off room on that evening. According to Mr Kassey the workers generally were joking around and having a laugh. The Claimant and Mr Tasi were arguing about who was going to be the next supervisor. He recalled hearing the Claimant say in a sarcastic and cheeky manner, "Oh, that'll be you, Sam". Mr Tasi did not like the Claimant's comments.
[50]Once again I find that the Claimant was taunting or baiting Mr Tasi whilst in the clock-off room. He wanted a rise out of Mr Tasi and he got it. He taunted or baited Mr Tasi about him wanting the anticipated supervisory position. I find that the Claimant referred to Mr Tasi in the clock-off room as a "OneSteel bitch" meaning that Mr Tasi would do the Appellant's bidding and therefore was likely to be appointed as a supervisor. I find that Mr Tasi got very upset at the Claimant's comments and told him on a number of occasions to "stop", to "shut up" to "shut the fuck up". This did not however stop the taunting by the Claimant. The Claimant either, did not comprehend the anger in Mr Tasi, or he just dismissed that anger believing that Mr Tasi would take no action. Mr Crawford could see that the Claimant's comments had triggered something off badly in Mr Tasi. The Claimant could also have seen that had he not been so intent on taunting or baiting Mr Tasi. The other workers saw it and became silent. The Claimant was, at this time, on notice that Mr Tasi was not responding to his taunting and/or baiting in his usual manner. Rather Mr Tasi was very angry.
[51]Events following clock-off at 9:45pm on 5 February 2016: Mr Tasi said that after he had clocked off he was walking out with other workers when he heard his name mentioned. The evidence and the CCTV footage indicated that Mr Tasi commenced to walk out, not in the direction of the Claimant, but rather in another direction towards where his car was parked. He did however hear his name mentioned by the Claimant. He didn't quite understand what was being said however the Claimant had yelled out something to other workers. As a result, Mr Tasi then yelled out to the Claimant saying, "What are you still going on about?". This was when the Claimant turned around and walked towards Mr Tasi. The Claimant stated that "Sam was a OneSteel bitch" at this time.
[52]The Claimant was walking towards Mr Tasi and then stopped and Mr Tasi continued to walk towards the Claimant. Both men were face to face (about three or four inches apart) and the Claimant again said to Mr Tasi that he was just a "fucking OneSteel bitch". Mr Tasi understood the term "bitch" to mean that he would do whatever the company wanted him to do. The Claimant had said these words loudly. The Claimant was very aggressive when he said the words and he looked angry. Mr Tasi said that he could no longer take it – he just lost it and hit the Claimant in the face. Mr Tasi said that the Claimant didn't punch back and other workers came to break up the fight.
[53]Whilst Mr Tasi said that the Claimant had not called him a "OneSteel bitch" before he said he had referred to him as a "bitch" but on those occasions the Claimant appeared to be joking around so Mr Tasi had not taken him seriously. On 5 February 2016 however Mr Tasi said that the Claimant was not joking. The Claimant was being quite serious.
[54]When other workers came and broke up the fight, Mr Tasi just jumped in his car and went home. Mr Tasi's employment was terminated as a result of the altercation so there was no benefit to Mr Tasi of continued employment in giving his evidence. Mr Tasi said that had the Claimant not said that Mr Tasi was a "OneSteel bitch" on that evening he would not have struck him. I accept Mr Tasi's evidence in this regard.
[55]Mr Brownlie clocked off immediately after the Claimant. They were both walking towards their respective cars. Whilst they were walking Mr Brownlie could hear the Claimant going on and on about something. He was continually talking to himself. Mr Brownlie then asked the Claimant what he was saying and that is when the Claimant said, "Oh Sam's just a OneSteel bitch". Mr Brownlie's understanding of the term "bitch" was that such a person would do what the company asked them to do. The Claimant, in calling Mr Tasi a "bitch", was saying that Mr Tasi would "suck up to the boss".
[56]According to Mr Brownlie, the Claimant said the words two or three times i.e. that "Sam's just a OneSteel bitch". Mr Brownlie said that he was unaware that Mr Tasi was behind them when the Claimant said, "Sam was a OneSteel bitch", and the Claimant had said the words loud enough for Mr Tasi to hear. When calling Mr Tasi a "OneSteel bitch" there was nothing calm about the Claimant's conduct according to Mr Brownlie. The Claimant turned around in response to Mr Tasi saying something like "Say it to my face". Then the Claimant started to walk back towards Mr Tasi. The Claimant then said the words to Mr Tasi's face. The Claimant was saying the words in quite a loud voice. Whilst Mr Brownlie did not see the Claimant's comments as a joke, he said that the Claimant appeared to be treating it like a joke.
[57]Mr Tasi then grabbed the Claimant and commenced to fight him.
[58]Under cross-examination, Mr Brownlie agreed that in the carpark area when he asked the Claimant what he was saying, the Claimant said, "Sam's just a fucking OneSteel bitch". I accept that on the first occasion in the carpark when the Claimant referred to Mr Tasi as a "OneSteel bitch" he was responding to a question from Mr Brownlie.
[59]Mr Crawford was the last to clock-off and when he saw the Claimant and Mr Tasi after clock-off they were already fighting.
[60]Mr Williamson, the Maintenance Leading Hand on the 5 February 2016 shift, was the person in charge of the shift on that day because the supervisor had been required to leave the site earlier that night. Whilst he clocked off from a different area to both the Claimant and Mr Tasi, he saw both the Claimant and Mr Tasi fighting in front of the weighbridge after he had clocked off. According to Mr Williamson, Mr Tasi was giving the Claimant a "bit of a touch up" when he saw the two of them. Mr Williamson said that Mr Tasi was quite agitated and upset. Mr Williamson had never seen Mr Tasi like that before. Mr Williamson further noted that Mr Tasi was a fair bit bigger that the Claimant.
[61]After Mr Tasi had left the scene, the Claimant wanted Mr Williamson to recall the Yard Manager that evening as he wanted to report the incident. The Claimant further said that he was going to the police and would not make a work statement about the incident that evening. Mr Williamson said that he was aware that the Claimant left the site that evening but returned shortly thereafter. Ultimately, it was Mr Williamson who took the Claimant to a hospital that evening.
[62]Mr Kassey and Mr Brownlie were walking together towards their vehicle with the Claimant slightly ahead of them. According to Mr Kassey, the Claimant was mumbling something under his breath whilst walking towards his car. Mr Brownlie said something like "What is wrong" to the Claimant, "What are you saying", and that is when the Claimant turned around and said "Sam is just a OneSteel bitch". On another occasion Mr Kassey said that it was when Mr Tasi called out to the Claimant "Say that to my face" that caused the Claimant to turn around and walk towards Mr Tasi.
[63]The Claimant said that he was murmuring to himself as he walked towards his car when Mr Brownlie asked him what he was murmuring about. The Claimant said he responded "if someone wants to be a OneSteel bitch, he can be a OneSteel bitch. What's the big deal". The Claimant said that he then turned around and heard Mr Tasi say "Kenny, Kenny. Can you say what you just said to my face?". The Claimant's evidence was that he then said something like "We both have kids. What are you doing? There is a no fighting no bullying policy at work". The Claimant further said that he told Mr Tasi "If you hit me, you'll lose your job". No other witness to the assault referred to such comments being made by the Claimant but it does indicate that the Claimant was aware that a fight was likely following this. Yet the Claimant continued and called Mr Tasi a "OneSteel bitch" to his face after these comments are alleged to have been made by the Claimant to Mr Tasi. So, on his own evidence the Claimant was concerned that Mr Tasi was going to hit him and yet he continued to call Mr Tasi a "OneSteel bitch".
[64]On the evidence before me I find that the Claimant clocked off first and was followed shortly thereafter by Mr Brownlie and Mr Kassey. The Claimant continued to display displeasure whilst walking towards his car which was in a different direction to the motor vehicle of Mr Tasi. Mr Brownlie was concerned about the comments being made by the Claimant and asked him "What was wrong" or "What are you saying". In response to Mr Brownlie's question, the Claimant turned around and said in a loud voice "Sam is just a OneSteel bitch". I further find that when walking towards their motor vehicles neither the Claimant nor Mr Brownlie were aware that Mr Tasi was not far behind them.
[65]As the Claimant had turned around before making the statement, I find that the Claimant was aware that Mr Tasi was relatively close to him when he made the statement "Sam is just a OneSteel bitch". I further find that Mr Tasi heard the Claimant refer to his name in that statement. It was at this time that the Claimant then walked towards Mr Tasi. The Claimant alleged in his evidence that he just wanted to get home because his daughter was sick. There is no doubt that the Claimant was aware that Mr Tasi was very upset and very angry with the Claimant's conduct on 5 February 2016 e.g.
· the Claimant had entered into Mr Tasi's "line of fire" earlier in the day and, I have found, that the Claimant's action in this regard was deliberate;
· the Claimant had taunted and baited Mr Tasi in the clock-off room minutes prior to clock-off time causing Mr Tasi great distress. Mr Crawford was so concerned about the potential for a physical attack that he had cause to intervene in their discussion;
· the Claimant was aware that Mr Tasi was within earshot when he loudly said, "Sam is just a OneSteel bitch" and the connotation that term had for Mr Tasi and his co-workers;
· the Claimant chose to turn away from the pathway to his vehicle and loudly make the statement whilst facing Mr Tasi;
· the Claimant then walked towards Mr Tasi and said the same words to Mr Tasi's face i.e. that he was a "OneSteel bitch"; and
· the Claimant was aware that Mr Tasi was a person of much bigger stature that he was. It was the Claimant's evidence that he had never been involved in a physical altercation previously, so he must have been counting on Mr Tasi not reacting physically. Yet, in his evidence he claimed to have warned Mr Tasi just prior to the assault about not fighting at work and the potential for Mr Tasi to lose his job. At some point prior to making the comment to Mr Tasi's face, the Claimant became aware of the likelihood of a physical assault and yet he continued to call Mr Tasi a "OneSteel bitch" to his face.
[66]On his own evidence the Claimant was aware of the potential for a physical altercation between he and Mr Tasi as he said he warned Mr Tasi of the "no fighting" policy and the fact that if Mr Tasi hit him he would lose his job. The Claimant's awareness of this fact was there prior to him calling Mr Tasi a "OneSteel bitch" to his face. I find that the Claimant when he called Mr Tasi a "OneSteel bitch" to his face knew what Mr Tasi's reaction was going to be i.e. that he would assault the Claimant. Yet the Claimant said the words to Mr Tasi's face after that awareness.
Credibility of the Claimant's Evidence
[67]I did not find the Claimant to be a credible witness and in so doing I note the following:
· his description of Mr Tasi as an "angry person" when compared to the description of Mr Tasi given by other co-workers and the manner in which Mr Tasi gave his evidence;
· the fact that the Claimant denied going into Mr Tasi's "line of fire" on 5 February 2016 when his actions were witnessed not only by Mr Tasi but also by Mr Crawford. Further, the fact that he would deliberately flout safety requirements just to get the machine he wanted gives another indication of the Claimant's nature;
· that he didn't remember raising a finger to Mr Tasi during the "line of fire" incident when Mr Crawford also noted his finger gesture;
.
· his inability to remember using the term "fuck you" at work when Mr Tasi and other co-workers said he used the term frequently;
· his evidence that the only time he called Mr Tasi a "OneSteel bitch" was on the evening of 5 February 2016 whereas Mr Jones had heard him call Mr Tasi this on at least two previous occasions over the radio;
· his denial that he was angry on the evening of 5 February 2016 when he had said differently in a Statement signed by him in 2016;
· his denial that Mr Jones had warned him on two occasions about the consequences of continuing to use the language he had used to describe Mr Tasi and then later saying that "it might have happened" but he could not remember. I found Mr Jones to be a very credible witness;
· that he could not remember having an argument with Mr Jones when Mr Jones had been asked to repair his machine;
· his evidence that it was exactly 9:42pm when he went to the clock-off room and there was only one other colleague in the room. Other co-workers referred to the fact that most workers were in the room five to ten minutes prior to clock-off time i.e. somewhere between 9:35pm and 9:40pm; and
· that in the clock-off room he was serious and straightforward in telling Mr Tasi that he could become a supervisor when other co-workers said that the Claimant was speaking in a sarcastic manner.
Appellant's Policies
[68]At the relevant time the Claimant, in executing his acceptance of the terms and conditions contained in his offer of employment, had accepted, inter alia, the Appellant's Harassment and Bullying Policy (Exhibit 8).
[69]On 19 November 2014 the Claimant received training on the Appellant's harassment and discrimination awareness policy in the workplace. In so doing, the Appellant confirmed that "the company considers any action that constitutes discrimination or harassment to be serious misconduct and may result in disciplinary action up to and including dismissal".
[70]On 21 January 2016 the Claimant (some 14 days prior to the incident) attended a training program reaffirming the Appellant's Cardinal Rules policy. Two of those Cardinal Rules are:
· that workers not participate in acts of horseplay, fighting or provoking a fight; and
· that workers not wilfully breach a line of fire lifesaver.
[71]On 5 February 2016, at some time after 2:00pm the Claimant breached the Appellant's "line of fire" policy and Mr Tasi was upset and angry with the Claimant's actions. Further, just prior to the assault, the Claimant was aware, or should have been aware, that Mr Tasi was again upset and angry with the Claimant's taunting and baiting of him in the clock-off room. Mr Tasi had made it quite clear to the Claimant to cease and desist from the comments he was making in the clock-off room in telling the Claimant to "shut up" or "shut the fuck up" on a number of occasions. Mr Crawford was clearly aware that a physical alteration might ensue if he did not try and stop the verbal altercation between the two men. The Claimant's actions in this regard and in the carpark provoked the fight that caused his injuries.
[72]I also had the benefit of the CCTV footage of the Claimant and others walking towards their motor vehicles and then the Claimant turning around and walking back towards the area that he had come from. He then appeared to stop just prior to Mr Tasi closing in on him and then commencing to assault the Claimant. It was further apparent from the CCTV footage that Mr Tasi could handle himself in a fight whereas the Claimant was unable to do likewise.
Submissions
[73]Regulator: The Regulator submits that in order for the Appellant to succeed in this appeal it must establish the following:
·that the interaction between the Claimant and Mr Tasi on 5 February 2016 constituted serious and wilful misconduct. This includes a consideration of the Claimant having the necessary knowledge and appreciation of the consequences of his conduct; and
·the Appellant must further establish that the conduct on the part of the Claimant was causative of the injury he sustained by way of him having the necessary knowledge and appreciation of the consequences of his conduct.
[74]The Regulator submits that the assault on 5 February 2016 occurred against a background of interaction between the Claimant and Mr Tasi over a period of three and a-half years involving friendly interaction. The Regulator further submits that there had been no report made by Mr Tasi to Mr Hynes, the Appellant's Hemmant Operations Manager, of any incidents of alleged bullying, there was no report of any of the incidents of bullying by any of Mr Tasi's co-workers and Mr Hynes himself did not observe any of the conduct allegedly engaged in by the Claimant prior to the events of 5 February 2016.
[75]The Regulator submits that it is against this background that the events of 5 February 2016 occurred. The Regulator further submits that the Appellant had taken no action whatsoever about the taunting of Mr Tasi by the Claimant which had apparently been ongoing prior to 5 February 2016. The Regulator contends that the Commission should reach a conclusion that the interactions between the Claimant and Mr Tasi, prior to 5 February 2016, were not of such a nature as to alert the Appellant to a potential assault occurring within the workplace. Thus, it would follow that it is reasonable to conclude that the Claimant was also not so alerted and had no appreciation (either general or particular) as to the possible danger and the risk of "non-trivial injury". Further, it also follows that the Appellant itself did not consider the conduct of the Claimant to constitute serious misconduct.
[76]Mr Sapsford, Counsel for the Regulator, also contended that the lack of action by the Appellant's management team and a disinterest by that management could be observed from the following evidence of Mr Tasi i.e.
· Mr Tasi's failure to report the Claimant walking into his "line of fire" on 5 February 2016;
· Mr Tasi's stated reason for not reporting the Claimant prior to 5 February 2016 was due to him thinking that reporting it would not achieve anything as he did not think "anything would be done about it";
· Mr Tasi's failure to report the exclusion zone incident was because Mr Tasi did not know who his supervisor was on that particular shift; and
· that, according to Mr Crawford's evidence, it was left to Mr Tasi and the Claimant to sort the allocation of machinery and the performance of their duties out between themselves.
[77]The Regulator submits that the phrase "serious and wilful misconduct" was comprehensively analysed by President Hall in Australia Meat Holdings Pty Limited v Q-COMP[2] when he concluded that the preferable approach was that of Derrington J in Boral Resources (Qld) Pty Ltd v Pike[3] where it was said that the "necessary knowledge and appreciation need not descend to particularity" and that an "appreciation of possible danger or of other factors which might enlarge it" may be sufficient to justify the characterisation of the "wilful misconduct" as "serious". Hall P further stated that the relatively simple language of s 130 of the Act should not be overlaid with gloss and the question whether "misconduct" is to be characterised as "serious" should be dealt with as a jury question.
[2] Australia Meat Holdings Pty Limited v Q-COMP (2007) 186 QGIG 527.
[3] Boral Resources (Qld) Pty Ltd v Pike [1992] Qd R 25.
[78]Previously Mr Tasi had just walked away from the Claimant when he made particular comments and avoided confrontation. Thus, according to the Regulator, there was no risk of serious injury to the Claimant, whether it be categorised as "general" or "particular". It is further submitted that this is confirmed by the Appellant's conduct in its lack of intervention.
[79]The Regulator submits that the interaction between the Claimant and Mr Tasi was not of such a nature to alert either management or the Claimant to the possibility that Mr Tasi might "snap" and commit the assault which occurred on 5 February 2016. The general view of Mr Tasi's co-workers was that Mr Tasi's conduct on that evening was out of character and that it caught everyone by surprise.
[80]The Regulator contends that the facts and circumstances of the current case are quite different to those in Duckworth v Simon Blackwood (Workers' Compensation Regulator)[4] and the case should not be relied upon. In this regard the Regulator submits the following:
[4] Duckworth v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 112.
· Mr Tasi was not known to be a person skilled in martial arts or a person prone to physical violence and in fact the evidence is to the contrary;
· when similar comments had been made previously Mr Tasi did no more than ignore them and he did not report them to his supervisor;
· the comments of the Claimant were originally made to Mr Brownlie and it was only through Mr Tasi overhearing the comment that the matter escalated;
· the conduct of the Claimant could not reasonably be regarded as misconduct of the nature engaged in by Mr Duckworth being a deliberate physical assault upon a work colleague; and
· the CCTV evidence reveals that it was Mr Tasi that "launched" himself at the Claimant.
[81]The Regulator submits that the Commission would find that, having regard to the interaction between the Claimant and Mr Tasi over an extended period of time, that the interaction between them on 5 February 2016 was one involving banter between co-workers and was not in the circumstances "serious misconduct".
[82]In determining this appeal, the Regulator further submits that the view expressed by the Appellant should not be overlooked i.e.
· the evidence of Mr Williamson was that if management had been aware of the conduct engaged in by the Claimant it would have been addressed by way of censure, reprimand or some form of intervention;
· the evidence of Mr Hynes as to the lack of reporting by Mr Tasi or any of his co-workers as to the conduct on the part of the Claimant which was inappropriate, bullying or amounted to misconduct in any fashion;
· the Claimant's conduct occurred in an open forum of the workplace environment and had occurred for a considerable period of time; and
· the Claimant's conduct was not addressed by the Appellant until after the incident on 5 February 2016.
[83]On the issue of the conduct on the part of the Claimant being "causative" of the injury he sustained, the Regulator submits:
· similar conduct on the part of the Claimant over an extended period of time was not productive of the reaction exhibited by Mr Tasi on 5 February 2016;
· similar conduct on the part of the Claimant over an extended period of time did not produce intervention, reprimand or any other action by the Appellant to address what it now contends to be "wilful misconduct";
· the conduct exhibited by Mr Tasi on 5 February 2016 was said by him to be out of character in that he stated, "I just snapped because I couldn't take his abuse anymore";
· there is no documented history of similar conduct by Mr Tasi i.e. no assault, no loss of temper or other action which may have appraised the Claimant of the likelihood of such conduct on the part of Mr Tasi;
· the conduct of Mr Tasi on 5 February 2016 was out of character and caught everyone by surprise; and
· on any analysis the actions of Mr Tasi on 5 February 2016, his actions were a gross overreaction to the conduct of the Claimant.
[84]The Regulator thus submits that the appeal should be dismissed and the Appellant ordered to pay the Respondent's costs of and incidental to the appeal.
[85]Appellant: The Appellant contends that the Claimant embarked upon a concerted course of conduct to bully, harass and intimidate Mr Tasi and to deliberately invoke a retaliatory response from Mr Tasi. A response which actually occurred on 5 February 2016. This behaviour included, inter alia, inappropriate and offensive comments regarding Mr Tasi's mother who the Claimant was aware had recently died, regularly swearing at him, regularly baiting him, regularly speaking to him in a rude and offensive manner and calling Mr Tasi a "OneSteel bitch" on a number of occasions.
[86]The Appellant submits that the Claimant was aware of the effect of his behavior on Mr Tasi. The Claimant had acknowledged OneSteel's Cardinal Rules and further the Claimant had been informed by co-workers and Mr Tasi that his behavior was inappropriate. The Claimant had been given two warnings from Mr Jones in October 2015 and in January 2016 that his behavior and language was inappropriate.
[87]On 5 February 2016 the Claimant had breached a Cardinal Rule i.e. entering the line of fire of Mr Tasi's machine. The Appellant submits that this was a deliberate breach of the "line of fire" Cardinal Rule. Further, the Claimant then gave Mr Tasi a rude gesture and continued to berate him. According to the Appellant, the Claimant knew that his actions were frustrating Mr Tasi.
[88]Notwithstanding that, Mr Tasi told the Claimant to "shut up" and thus made it clear that he wished the behavior to cease as he was finding it offensive and was becoming increasingly agitated, the Claimant continued with his behaviour. The Claimant thus knew that Mr Tasi was becoming increasingly agitated with his behaviour.
[89]After clocking off for the evening, the Claimant whilst walking towards his motor vehicle continued to mutter to himself. When Mr Brownlie asked him to state what he was muttering about the Claimant then, in the clear earshot of Mr Tasi, called Mr Tasi "OneSteel's fucking bitch". Mr Tasi then called out to the Claimant to say this to his face and the Claimant further approached Mr Tasi moving close to him and repeated that he was "OneSteel's bitch" to his face in a loud and aggressive manner.
[90]The Appellant thus submits that the ensuing assault was occasioned as a result of the continued behavior of the Claimant which was serious and wilful misconduct and thus disentitling the Claimant to compensation.
[91]The Appellant referred the Commission to the decision of Martin J in Duckworth v Simon Blackwood (Workers' Compensation Regulator)[5]. In that case it was clear that the employer had a significant policy covering the very behaviour that occurred on the day in question, including, most particularly, the behavior of the injured worker which was causative.
[5] Duckworth v Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 003.
[92]The Appellant submits that the Claimant embarked on a deliberate course of conduct designed to provoke Mr Tasi, his co-worker, in circumstances where he had been clearly warned by Mr Jones on two occasions in October 2015 and January 2016. The Appellant contends that the Claimant's behavior was a deliberate course of conduct, provocative in nature and designed to get a response from Mr Tasi. Retaliation could not thus have been unexpected. Retaliation was what the Claimant was attempting to achieve and thus he was the author of his own misfortune.
[93]The Appellant further submitted that, as part of his employment contract, the Claimant executed an acceptance of the terms and conditions of the offer of employment. In so doing the Claimant accepted the Appellant Bullying and Harassment Policy. Further:
· on 19 November 2014 the Claimant executed a questionnaire and record of attendance following a program on harassment and discrimination awareness in the workplace. In that document the Claimant confirmed his understanding as follows:
"The company considers any actions that constitute discrimination or harassment to be serious misconduct that may result in disciplinary action up to and including dismissal."
· On 21 January 2016 (approximately two weeks prior to the 5 February 2016 event) the Claimant attended a training program to reaffirm the Appellant's Cardinal Rules Policy. Those Cardinal Rules provided:
that workers not participate in acts of horseplay, fighting or provoking a fight; and
that workers not wilfully breach a line of fire life saver.
[94]The Appellant thus concludes that the conduct of the Claimant on 5 February 2016 was serious and wilful. It was a deliberate provocative attempt to get a rise out of Mr Tasi which eventuated. According to the Appellant, the Claimant cannot rely on the fact that he did not expect the behavior to escalate to the extent of a physical response. The Commission could be satisfied that it was the Claimant's deliberate intention. Further, the Claimant had been warned at least on two occasions by Mr Jones of the inevitable result of his actions.
Conclusion
[95] As mentioned previously the issue for determination in this appeal is whether the injuries that the Claimant suffered on 5 February 2016 were caused by his serious and wilful misconduct. Hall P in Australia Meat Holdings Pty Limited v Q-COMP[6] held that the inclusion of the word "and" meant that the phrase is used in the conjunctive sense so that the misconduct has to be both serious and wilful. I therefore must consider whether the Claimant's conduct was both "serious" and "wilful". In this regard Hall P also commented that:
"Counsel maintain, in my view correctly, that the circumstances that misconduct is 'wilful' may be taken into account in weighing its 'seriousness'."
[6] Australia Meat Holdings Pty Limited v Q-COMP (2007 186 QGIG 527.
[96]Further, Hall P found that it seemed to have been settled "that the seriousness of the misconduct is to be evaluated having regard to whether the conduct would be attended by the risk of non-trivial injury". It was further stated by Hall P that "[t]he requirement that the misconduct must be 'wilful' adequately protects injured workers who might otherwise lose everything because of a momentary lapse into carelessness". In Australia Meat Holdings Pty Limited v Q-COMP[7] Hall P said that he preferred the approach of Derrington J in Boral Resources (Qld) Pty Ltd v Pyke[8], that the "necessary knowledge and appreciation need not descend to particularity" and that an "appreciation of possible danger or of factors which might enlarge it" may be sufficient to justify characterisation of the "wilful misconduct" as "serious". Beyond those observations, Hall P said "it seems to me that the relatively simple language of s 130 should not be overlayed with gloss and the question whether "misconduct" is to be characterised as 'serious' should be dealt with as a jury question".
[7] Australia Meat Holdings Pty Limited v Q-COMP (2007) 186 QGIG 527.
[8] Boral Resources (Qld) Pty Ltd v Pyke [1992] Qd R 25.
[97]I have also had the benefit of Fisher C's analysis of the phrase "serious and wilful misconduct" in Duckworth v Simon Blackwood (Workers' Compensation Regulator)[9] an analysis which Martin P accepted in Duckworth v Simon Blackwood (Workers' Compensation Regulator)[10] and in particular paragraphs [4] – [7] of that decision.
[9] Duckworth v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 112.
[10] Duckworth v Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 003.
[98]In each of the interactions between the Claimant and Mr Tasi on 5 February 2016 the Claimant's conduct was clearly "wilful" i.e. in the "line of fire" incident, the exchange in the clock-off room and the exchange in the carpark after clock-off. The issue then is whether the conduct of the Claimant on each occasion was "serious".
[99]Insofar as the "line of fire" incident shortly after 2:00pm on 5 February 2016 was concerned, I have previously found that the Claimant engaged in both serious and wilful misconduct. He endangered his own safety and deliberately breach the "line of fire" Cardinal Rule of the Appellant. The issue then becomes whether the "line of fire" incident was causative of the altercation shortly after 9:45pm on the same day which will be considered later.
[100]The interaction between the Claimant and Mr Tasi in the clock-off room during the period 9:35pm to 9:45pm on 5 February 2016, and particularly the Claimant's reference to Mr Tasi as a "OneSteel bitch", is another potential causative factor in the assault and thus the injuries suffered by the Claimant. The Claimant had taunted and baited Mr Tasi in the clock-off room seeking a rise from him. He got that rise. Mr Tasi's reaction to his taunting was not the previous reaction that he had provoked. Mr Tasi had previously walked away. This time Mr Tasi had told him on a number of occasions to "shut up" or "shut the fuck up". The Claimant however persisted knowing that Mr Tasi was not reacting in his normal fashion. Mr Crawford could see the potential for a physical altercation given the anger displayed by Mr Tasi in the clock-off room. The remainder of the co-workers in the room that evening could see that it was not a normal reaction by Mr Tasi and they became silent prior to clock-off.
[101]The terminology used by the Claimant (i.e. OneSteel bitch) itself is very disparaging to a worker, particularly a worker in a blue-collar workforce. The term was used to denigrate Mr Tasi in front of his co-workers in the clock-off room. I find the use of the term "OneSteel bitch" towards Mr Tasi to have been particularly offensive in the environment in which it was made. Whether he was trying to get back at Mr Tasi for not giving him the machine he wanted on that day or some other reason, the comment had to have been said in an attempt to provoke Mr Tasi into a reaction additional to the one then being shown by Mr Tasi i.e. anger.
[102]When Mr Tasi reacted by saying "shut up" or "shut the fuck up" in front of the other co-workers, the Claimant must have realised he had got a reaction from Mr Tasi that was not his normal reaction to such taunting. The Claimant at that time should have realised that to continue in the same manner was to provoke a potential fight in the workplace. Had it not been for Mr Crawford's intervention, the physical altercation between the two of them may have occurred in the clock-off room. I find the Claimant's calling of Mr Tasi a "OneSteel bitch" in front of co-workers in the clock-off room to have been both wilful and serious misconduct.
[103]Similarly, the Claimant's conduct in the carpark area was clearly causative of the assault and therefore causative of the injuries sustained by the Claimant. The Claimant knew that Mr Tasi was very angry only moments earlier in the clock-off room and yet he yelled out that "Sam was a OneSteel bitch" in the carpark within earshot of Mr Tasi. He had to have seen Mr Tasi when he turned around and loudly said those words within Mr Tasi's earshot. It is irrelevant that the Claimant said the words in response to a question from Mr Brownlie. The Claimant's conduct in saying the words again in the carpark was serious and wilful misconduct. To have then walked back towards Mr Tasi and said the words to Mr Tasi's face just made his conduct that much more serious and wilful. In his own evidence the Claimant indicated that he knew that Mr Tasi was up for a fight given that his evidence was that prior to the assault occurring he tried to warn Mr Tasi about the consequences of fighting at the workplace.
[104]I am satisfied that the Claimant embarked on a deliberate course of misconduct with knowledge that his conduct was wrong and likely to cause danger to himself. Whilst the "line of fire" incident occurred earlier on 5 February 2016, Mr Tasi was obviously upset with the Claimant's conduct on that shift. It may not have been the immediate cause of the physical altercation but it had caused Mr Tasi grief on that shift and the Claimant knew of that grief. The continued taunting of Mr Tasi in the clock-off room was deliberate and meant to get a reaction from Mr Tasi. The Claimant knew that he had got a different reaction from Mr Tasi to the reaction that he normally got when he taunted Mr Tasi. On this occasion Mr Tasi had told him on a number of occasions to "shut up" or "shut the fuck up" and he was displaying anger towards the Claimant. Everyone else in the clock-out room could see Mr Tasi's reaction. They became silent and Mr Crawford intervened in the discussion between the Claimant and Mr Tasi. The use of the derogatory term "OneSteel bitch" in front of Mr Tasi's co-workers was purposeful on the part of the Claimant and he knew that it was wrong and likely to further rile Mr Tasi. The use of the derogatory accusation that Mr Tasi was a "OneSteel bitch" in front of co-workers, was a blatant attempt by the Claimant to ridicule, embarrass and humiliate Mr Tasi and to provoke a reaction in him in addition to the reaction that he had already displayed i.e. anger at the taunting he had already received from the Claimant.
[105]The Claimant's actions in the carpark were also deliberate and intentional. The Claimant knew he was in danger at this time but he continued to taunt or bait Mr Tasi. His walking back towards Mr Tasi in the carpark was again provocative and he knew that his actions had the potential to cause serious injury to himself. The Claimant also knew that fighting in the workplace would lead to dismissal from employment given his evidence of the words alleged to have been said to Mr Tasi just prior to the altercation. That Mr Tasi would likely react to the Claimant's taunting and name calling by punching the Claimant must have been realised and understood by the Claimant given that he said he warned Mr Tasi about fighting in the workplace.
[106]The Claimant's conduct on 5 February 2016 involved serious and wilful misconduct and I find that the Claimant engaged in such serious and wilful misconduct. The conduct in the clock-off room and in the carpark that evening were clearly causative of the altercation that occurred that evening.
[107]Momentary lapse into carelessness: The Claimant had taunted and baited Mr Tasi for a considerable period of time. Mr Tasi had previously not responded to that taunting and baiting. By 9:45pm on 5 February 2016 Mr Tasi had reacted differently. The Claimant knew inside the clock-off room that Mr Tasi had not walked away from the taunting and baiting on this occasion. The Claimant had also referred to Mr Tasi in the clock-off room as a "OneSteel bitch" in front of co-workers. Even though Mr Tasi had told him on a number of occasions in the clock-off room to "shut up" or "shut the fuck up", the Claimant continued to sarcastically taunt him. The continued conduct on the part of the Claimant was obviously an attempt to get a different reaction to the anger already showing in Mr Tasi.
[108]Upon clocking off the Claimant continued muttering or murmuring something to himself. When asked what was he muttering or murmuring about he said in a loud voice that "Sam was a OneSteel bitch". This was not a momentary lapse into carelessness. Further, following that he then walked towards Mr Tasi and said the words to his face. Again this was no lapse into carelessness.
[109]The Claimant could have continued walking towards his car. He did not need to respond to Mr Brownlie's question and he certainly did not need to respond to Mr Tasi's request to say the words to his face. Instead, the Claimant continued to taunt and denigrate Mr Tasi in using the "OneSteel bitch" comment which escalated the incident and resulted in Mr Tasi fighting him.
Causation of the Claimant's Injury
[110]The cause of the Claimant's injury was not an issue in this appeal. It was Mr Tasi's punches that landed on him during the physical altercation that resulted in the Claimant's injuries. Mr Tasi was provoked by the Claimant's serious and wilful misconduct to punch the Claimant on that evening. The Claimant was the initial agitator in his engaging in serious and wilful misconduct which in turn resulted in the assault which resulted in the injuries to the Claimant.
Appellant's Involvement
[111]The Regulator submitted that I should not overlook the Appellant's views as to the assault and/or the Appellant's involvement, or lack thereof, in this matter. The evidence before me indicates that no supervisor, manager or other person in authority was made aware of the actions of the Claimant in taunting Mr Tasi. I can understand why Mr Tasi would not have reported some of that taunting. It must also be remembered that Mr Tasi was a casual employee and therefore did not have the benefit of permanent employment.
[112]Following the assault on 5 February 2016 the Appellant dismissed from employment both the Claimant and Mr Tasi. This action should have brought to the attention of other workers the seriousness of fighting in the workplace, provoking a fight in the workplace and breaching the "line of fire" policy of the Appellant.
[113]Given the evidence before me I do not consider that the Appellant's actions, or lack thereof, are relevant to a consideration of whether the Claimant's injury was caused by his serious and wilful misconduct.
Finding
[114]The Claimant's injuries sustained on 5 February 2016 were caused by his own serious and wilful misconduct. Thus the appeal is upheld.
[115]I make the following orders:
1. That the appeal is upheld.
2. That the decision of the Regulator made on 30 September 2016 is set aside.
3. That in lieu of the Regulator's decision of 30 September 2016, the decision of Arrium/One Steel Workers' Compensation Queensland of 17 March 2016 be confirmed i.e. that the claim by Mr Thomas for workers' compensation be rejected as his injuries were caused by his serious and wilful misconduct.
4. The Regulator is to pay the Appellant's costs of, and incidental to, the appeal.
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