The Case

(2017)

An excavator operator baited and taunted a co-worker over a number of years until, one day, his co-worker snapped and assaulted him in the car park. The excavator operator made a workers’ compensation claim claiming he suffered a soft-tissue injury and an acute stress reaction as a result of the assault.

OneSteel Recycling Proprietary Limited (OneSteel) was self-insured. It rejected the excavator operator’s workers’ compensation claim, given the workers’ own conduct contributed to his injuries. OneSteel’s decision was overturned on appeal. OneSteel then appealed to the Queensland Industrial Relations Commission (QIRC).

The Verdict

The QIRC heard evidence that it was out of character for the co-worker who attacked the excavator operator to have committed an assault. A number of actions by the excavator operator had pushed the co-worker too far.

For example, the excavator operator walked into an excluded safety zone and had given his co-worker the middle finger. Later, he taunted the co-worker, calling him a “OneSteel b*tch” several times.

The co-worker warned the excavator operator that if he continued the co-worker would hit him. When the excavator operator continued, the co-worker thereafter assaulted the excavator operator. The assault was caught on CCTV cameras.

The QIRC found that the excavator operator’s conduct was serious and wilful misconduct which contributed to the injuries he sustained. Hence, the workers’ compensation claim was denied.

The QIRC found that the excavator operator had breached OneSteel’s workplace health and safety policies and his contract of employment. OneSteel had done all it could to prevent the injuries by providing workers with training on workplace harassment and bullying and workplace health and safety. Following the incident OneSteel dismissed both employees.

The Lessons

Most workers’ compensation legislation provides insurers with an ability to deny workers’ compensation claims where the injured contributes to their injuries by engaging in serious and wilful misconduct. Despite these provisions, it has until now been very hard to defend a claim of denying a workers’ compensation claim on these grounds.

This decision indicates that insurers and employers should invoke this defence as courts and tribunals seem now open to supporting a denial of liability on these grounds.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.