The last straw: Assaulted worker denied access to workers comp for baiting and taunting co-worker to breaking point

In what circumstances must employees take responsibility for their own actions leading to injuries in the workplace?

In a recent decision of the Queensland Industrial Relations Commission (OneSteel Recycling Proprietary Limited v Workers’ Compensation Regulator [2017] QIRC 113), a self-insured employer’s decision to deny a worker’s workers compensation claim was upheld on the basis that the worker’s own serious and wilful misconduct lead to his injuries.

The worker, who was employed as an excavator operator, was found to have baited and taunted a co-worker over the course of a number of years until, one day, his co-worker snapped and assaulted him in the car park after a shift.

The worker sustained soft tissue injuries and was diagnosed with a psychiatric injury in the form of acute stress reaction, for which he claimed workers compensation.

The self-insured employer initially rejected the worker’s claim on the basis that his own conduct in provoking the co-worker lead to his injuries. Under the Workers’ Compensation and Rehabilitation Act 2003 (Qld), an injury sustained by worker that is caused by the worker’s serious misconduct is only compensable if the injury results in death or could result in a degree of permanent impairment of more than 50%. The employer’s position was that, as the worker had not sustained an injury as serious as contemplated by the legislation, and his injuries were the result of his own serious and wilful misconduct, workers compensation was not payable. This decision was overturned on appeal to the Workers’ Compensation Regulator, which was in turn appealed by the employer to the Queensland IRC.

In determining the matter, Vice President Linnane heard evidence from a number of employees at the site where the two men involved in the incident worked. The employees gave evidence that the co-worker who committed the assault was of good character and his attack on the worker was out of character.

VP Linnane also heard that, on the day of the assault, a number of other incidents had occurred that had pushed the co-worker to breaking point.

Earlier on the day of the assault, the worker had broken one of the employer’s safety “cardinal rules” when he walked into the exclusion zone surrounding a machine that the co-worker was operating. When he walked past the cab of the machine, he showed his middle finger at the co-worker before continuing on his way and exiting the exclusion zone.

Then, towards the conclusion of the day’s shift, a number of employees were gathered in the clock-off room waiting to leave the workplace when the worker began taunting the co-worker. The worker was calling the co-worker a “OneSteel bitch” and claiming that was the reason he would get a supervisor job. The co-worker became agitated at this point and began telling the worker to “shut up.”

The worker continued his taunting, muttering under his breath, as the employees moved into the carpark to leave the employer’s site for the day.  The co-worker overheard a further comment from the worker and then invited the worker to “say it to my face.”

The worker began to approach the co-worker (who was described as clearly worked up at this stage), reminded the co-worker that fighting at work would cost him his job, and repeated his previous comments to his co-worker, namely that he was a “OneSteel bitch.”

At that point, the co-worker began his assault on the worker, which was also captured by CCTV cameras.

VP Linnane found that the worker’s conduct was serious and wilful misconduct which he should have known was likely to result in the co-worker snapping and causing injury to him. In fact, VP Linnane heard evidence from another employee that he had warned the worker on several occasions that if he continued to taunt his co-worker, he would find himself being assaulted.

Further, the worker had received training on workplace harassment and bullying as well as training on workplace health and safety, including the employer’s “cardinal rules”. In addition to his conduct being generally unacceptable, it was also in breach of his employer’s policies and his contract of employment.

Ultimately, VP Linnane found that the employee’s injuries were caused by his serious and wilful misconduct, and accordingly workers compensation was not payable. The appeal was upheld and the self-insured employer’s decision to reject the claim was confirmed.   

It was evident that the employer had no knowledge of the tensions between the two employees and had provided them with all the necessary training to perform their duties safely and with respect for one another. Therefore, the employer had done all that it could to prevent the incident occurring and the fact that the assault occurred regardless was entirely due to the serious and wilful (mis)conduct of the employees.

Following the incident, both employees were dismissed from their employment. VP Linnane commented that this course of 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…”.

Most State and Territory workers compensation legislation contains provisions relating to ‘serious and wilful’ (mis)conduct. However, it is notoriously difficult for employers/insurers to successfully defend a claim using those provisions as courts and tribunals set a high bar for the relevant conduct, often making such defences toothless. For those reasons this decision is highly significant and gives employers and insurers renewed cause to not shy away from defending claims based on these provisions.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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