Grantham v Broken Hill Proprietary Co Ltd [2000] SAWCT 21

3 Alternatively, Mr Barrett QC submitted, the learned Deputy President had assumed the disputed facts in favour of the appellant (which he was entitled to do) but had then erred in drawing the legal conclusion that he did, viz that the facts indicated conduct that "so consistently flouted important safety procedures as to be taken to have effectively repudiated the contract of employment". He so erred, Mr Barrett said, because on the facts found it was not possible to draw the conclusion that the appellant's behaviour amounted to serious and wilful misconduct - tr 26, 32.

4 We do not see any indication that the learned Deputy President failed to take into account the evidence before him pertaining to the appellant's explanation of his conduct in respect of the four incidents that the learned Deputy President regarded as of significance, namely, the incidents occurring on 8 November 1995, 8 March 1997, 29 July 1997 and 6 August 1997. Clearly, the learned Deputy President did not consider it necessary to resolve all the conflicts and viewpoints as to the causes of and culpability for the incidents. This was not necessary because, as he said in his decision with specific reference to the last incident:-

"Even if all of the factual matters were to be resolved in favour of the worker it does not in any way change the fact that in undertaking the procedure as he did this morning, he acted in specific breach of instructions that he had been given regarding the proper procedure to effect coupling."

5 It is apparent from the learned Deputy President's decision that he likewise found with respect to two of the earlier incidents that irrespective of any conflicting views or mitigating factors as to cause or culpability, the worker had not complied with appropriate procedures. As to the third of the earlier incidents, the learned Deputy President did not feel it was necessary to resolve the conflict on the evidence relating to cause and culpability, but noted "what is of significance is that the worker was counselled about the importance of always being in control of the train that he was operating". Thus it was that the learned Deputy President, noting that only a little over a week before the final incident the appellant had again been specifically counselled about the need to comply with appropriate safety standards, made the finding he did that the respondent was entitled to have formed the view that the appellant had "consistently flouted important safety procedures". It can be inferred that the learned Deputy President concurred with the respondent's view of the appellant's conduct.

6 There was no legal requirement that the learned Deputy President make specific findings on each and every disputed factual matter and indeed Mr Barrett QC conceded this to be so (tr 2). The relevant finding that the learned Deputy President made on the evidence was that the appellant had consistently flouted important safety procedures over a period of approximately 18 months. That was a finding of fact open on the evidence and is unassailable before us.

7 With respect to Mr Barrett QC's alternative submission, no criticism is levelled at the learned Deputy President's statement of the relevant law which appears at 6 of his decision:-

"It has been authoritatively decided by the Full Bench of the Tribunal in John Smith v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Underdale Metal Processing) JD10/1997 that when s 36(1) speaks of dismissal for serious and wilful misconduct, it concerns misconduct which justifies summary dismissal from employment ...

There are many authorities that discuss the principles relating to circumstances, which justify summary dismissal for serious and wilful misconduct. These are collected in the decisions of the Full Bench of the Tribunal of Smith v WorkCover (supra) and Ruf v General Motors Automotive Ltd JD77/1998. The recurring theme that emerges from these cases is that in the context of a failure to obey lawful directions and instructions given to an employee, an employer will only be entitled to summarily dismiss for serious and wilful misconduct if the conduct of the employee can be regarded as having effectively repudiated the contract of employment by flouting or disregarding its essential conditions."

8 It is in the application of this law to the found facts that the learned Deputy President is said to have erred. If that be so, what the appellant must do to succeed here is show that the found facts lead necessarily to the conclusion contended for, namely that there had not been serious and wilful misconduct amounting to a repudiation of the contract of employment. It is not enough for the appellant to show that the conclusion contended for on his behalf was open on the evidence for that would not show that the learned Deputy President's conclusion was erroneous in law: WorkCover/MMI Workers Compensation (SA) Ltd (Ballestrin Concrete Construction Pty Ltd) v Gianfranco Giocondo Zanini JD125/1999 and the cases cited therein_._

9 Mr Barrett QC outlined at some length what he termed the mitigating factors with respect to the appellant's conduct in relation to the four incidents. There is, as we have indicated, nothing to suggest that the learned Deputy President did not have regard to these factors and indeed it is apparent that he made the relevant finding that he did notwithstanding these factors. Moreover, it was the learned Deputy President's view that the worker's consistent flouting of important safety procedures amounted to a repudiation of his contract of employment.

10 In determining whether or not it is appropriate for a compensating authority to invoke s 36(1)(e) of the Act the Tribunal has to be satisfied that the conduct in issue comprises serious and wilful misconduct amounting to a repudiation of the contract of employment. Whether the conduct in question can be so characterised will necessarily depend upon the circumstances of each individual case and is a matter of fact and degree. Moreover, that characterisation involves a judgment in respect of which reasonable minds may differ.

11 In determining an appeal from a decision involving the exercise of that judgment it is not appropriate for the Full Bench to simply substitute its own opinion regarding the proper characterisation of the conduct in question for that of the Member whose decision is under appeal. This is because unless it is clear that the Member's decision resulted from a misdirection or misapplication of the relevant legal principles, no question of law arises: John Smith v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Underdale Metal Processing) JD10/1997; WorkCover/MMI Workers Compensation (SA) Ltd (Ballestrin Concrete Construction Pty Ltd) v Zanini (supra); Bill Williams Pty Ltd v Williams [1972] HCA 23; (1972) 126 CLR 146.

12 In this case the conclusion reached by the learned Deputy President was one open to him on the evidence. It cannot be said to have resulted from a misdirection or misapplication of the relevant legal principles. Whatever characterisation we might have given to the conduct in question is not to the point. No question of law is raised in this appeal.

13 The words of Walsh J in Bill Williams Pty Ltd v Williams [1972] HCA 23; (1972) 126 CLR 146 at 154 and 156 serve as an appropriate reminder of the limited scope of an appellate Tribunal's inquiry on questions of law:-

"... But the Court is, of course, concerned in this appeal only with the case before it and the question of law therein raised. We have no authority to make any findings of fact. The question of law is limited to the legal effect of the facts found by the learned judge in the Workers' Compensation Commission who heard the case. The question does not relate to any other findings of fact which, if made, may have been supported by the evidence. We are not able to resolve the question before us by means of a comparison between the facts of this case and those of any other case. In the Court of Appeal, Asprey J.A. set out reasons for his conclusion that such differences as may be found between the facts of this case and those of Weston's Case ought not to be regarded as relevant. But such a comparison and evaluation of different sets of facts cannot determine, in my opinion, the question here, which is not whether the learned judge ought to have decided the case in the respondent's favour, but whether he was bound in law to do so.

In some cases it is a difficult task to determine whether different conclusions or but one conclusion are or is reasonably open. It is easy, in endeavouring to make a decision on that question, to slip across the boundary which must be maintained between the evaluation of the legal consequences of facts already found and the making of findings of fact. In this case our attention must be confined to the facts which the learned judge stated as having been found by him. On a consideration of those facts, I have reached the conclusion that it was not a case in which his decision should have been held to have been erroneous in law."

15 This appeal concerns how the contested issues of "serious and wilful misconduct" ought to have been decided by the trial Judge. In the alternative whether the trial Judge's conclusions of fact permitted the conclusion that the worker was guilty of serious and wilful misconduct.

16 The context of the appeal is s 36(1)(e) which reads as follows:-

"36(1) Subject to this Act, weekly payments to a worker who has suffered a compensable disability must not be discontinued unless -

(e) the worker is dismissed from employment for serious and wilful misconduct."

17 The worker aged 39 years had been an employee of BHP for some 18 years. During those years he suffered injuries that left him partially incapacitated. However this did not cause wage loss as he had employment which fell within his remaining capacity. At the time of his dismissal on 8 August 1997 that was as a locomotive driver. The learned Deputy President viewed as unnecessary formal proof that operating a locomotive and moving trains particularly in the railway yard demanded of the driver a care and attention commensurate with the great risk to person and property such movements involved. More so because they had an everyday routine quality to them which might encourage a loss of care through that familiarity. In this the Deputy President was clearly correct.

18 Some reference was made by the respondent in its case to the introduction of the Du Pont system to enhance the safety of the workplace. This appears to have emphasised the notion of personal responsibility in each of the employees in the area. I doubt this changed the primary obligation of both parties as prescribed by s 19 and s 21 of the Occupational Health Safety and Welfare Act 1986. However it may be that one addresses the duty created by the legislation whereas the other one (the Du Pont system) is a manner of effecting that duty. In any event such directions to the employees would be within the employer's right of control and the right to dictate not only what the employee was to do but the manner in which it was to be done.

19 Leaving aside some earlier events which the learned Deputy President ignored as irrelevant, I quote from the reasons for decision where he makes findings:-

"What I think of significance is that on 8 November 1995, the worker was involved in an incident when he was operating a rail vehicle that collided with a group of parked railway wagons. The incident was regarded as a serious breach of the safety procedures applicable at BHP. The worker received a written warning and was demoted from driver to guard for a period of six months which was later reduced to a period of three months after intervention by the worker's Union. The incident investigation report completed in relation to this incident (Book of Documents p 369 - 372) reveals that both the worker and crew member were travelling at the opposite end of the locomotive to what should have been the case. They should have been operating from the front locomotive. It appears that contrary to instructions the worker failed to stop the locomotive before attempting to couple with the group of wagons. It also appears that he had miscalculated the distance between the locomotive and the group of wagons and that he had misjudged his speed. It further appears that he had failed to report the incident and that he failed to have the damage assessed before continuing to work. There is an entry in the "comment section" by the Health and Safety representative that the practice of driving a locomotive from the rear is a common one. It is conceivable that some of the other alleged shortcomings of the worker simply mirrored bad work practices that others had also adopted. Be that as it may, given the sanction imposed by BHP the worker should have been under no illusions that he had failed to comply with appropriate procedures and his failure to do so was regarded by his employer as serious. Albeit with some reluctance the worker conceded that to be so in the course of his evidence (tr p 340).

The next incident of significance is that which occurred on 8 March 1997. On that occasion the worker was controlling a rail vehicle that pushed 7 loaded wagons into a dead end. The incident report form (p 373 - 376) suggests that the worker did not have adequate control of his train and had attempted to brake too late for it to stop in sufficient time, given the weight that it was carrying. The worker denied that to be so. In a statement annexed to the report he alleged that he had taken appropriate action and the brakes failed to respond appropriately because of graphite on the line. He maintained this during the course of cross-examination. It is not necessary for me to resolve this conflict. What is of significance is that the worker was counselled about the importance of always being in control of the train that he was operating.

On 29 July 1997 a random safety audit report revealed that the worker had left a locomotive running and unattended on the tracks with no hand brake or chocks to secure it. Mr Bennett (tr p 35) described a chock as a wooden wedge that is placed behind the wheels to prevent the runaway of vehicles.

The worker maintained that he had in fact fully applied the air hand brake and that realistically there was no chance that the air hand brake would have failed within the few minutes that he anticipated being away from the locomotive. As a result of this incident the worker met with Mr Bennett and later with a Mr Martin, the worker's immediate supervisor. During the course of the worker's meeting with Mr Bennett he was admonished and he gave an assurance to follow the procedures in chocking and hand braking a locomotive when it was unattended (tr p 352). A little over a week after this, the incident that immediately precipitated the worker's termination of employment occurred.

In an area known as the rail plant the worker was required to shunt a number of wagons. In the early evening of Tuesday 5 August 1997, he had left some wagons south of a gantry crossing. The next morning, upon his commencing work, it became necessary for him to secure those wagons then move them along the railway line. In the course of doing so he drove his train towards these wagons in the expectation that upon impact it would couple. The coupling did not eventuate. Instead of attaching to the trains the wagons were pushed by it along the line into the dead end. As a result of the collision between the wagons and the dead end, both were damaged. The cost of repairing the damage has been variously assessed at being of the order of $10000 or perhaps more.

In undertaking the coupling in this way the worker failed to comply with the designated procedures for coupling. He took a short cut expecting that a relatively minor impact between the train and the stationary wagons would cause the coupling, which attaches a wagon to the balance of a train, to fall into position. Apart from this being an inappropriate way of attempting to achieve coupling, it would appear that the worker had failed to apply hand brakes to the wagons that he was attempting to couple and it is also suggested that he failed to apply a chock. There were a number of contests between the party (sic) about a number of matters concerning the incident. The worker would have it that he had been working long hours and was tired at the time of the incident. He says that the weather conditions on the day of the incident were difficult in that it was very dusty. He says there must have been a defect in the pin, which caused the coupling not to occur. He claims that applied (sic) a choke. He claims that he was under the impression that there was some urgency about the task in hand because of a potential financial penalty that BHP would suffer at the hands of Australian National if the task was not completed on time. He says that the incident the week before was of no particular significance because the meeting and assurance given, related to leaving a running locomotive unattended.

Even if all of the factual matters were to be resolved in favour of the worker it does not in any way change the fact that in undertaking the procedure as he did this morning, he acted in specific breach of instructions that he had been given regarding the proper procedure to effect coupling."

20 The learned Deputy President concluded the company dismissed the appellant for serious and wilful misconduct because of his failure to follow the safety procedures.

21 As indicated above, the appellant's submission was that either critical issues of fact relating to the events leading up to the time of dismissal had not been resolved, and therefore an error had occurred, or alternatively if everything asserted by the worker was accepted then as a matter of law the grounds for serious and wilful misconduct did not exist.

22 Mr G Barrett QC for the appellant described the circumstances as follows (AT 6). The day before the incident the train made up of six wagons straddled a crossing. To clear the crossing before leaving work and to enable road vehicles to use the crossing, the appellant broke the train into two segments, three on one side of the crossing and three on the other. The next day, his first task was to recouple the two segments and move them to join a locomotive scheduled for 8 o'clock. He understood his dominant duty was to get the train in its correct position by 8 o'clock, otherwise BHP would suffer a penalty. He moved one wagon towards the other using a remote control. When the moving segment hit the stationary wagons no coupling occurred and the stationary wagons were pushed further down the line causing damage. The admitted errors constituting the misconduct (AT 8, 67) were failures of procedure in that the moving wagons should have been halted immediately before the coupling and secondly checking that the coupling mechanisms on the stationary and the approaching wagons were aligned before completing that coupling.

23 It was emphasised by Mr Barrett QC that these failures on the appellant's case were not proved to result in the wagons being bumped down the line and causing damage. Rather on the worker's evidence the mishap was caused by the pins in the coupling mechanism failing to drop and his procedure or lack of it had made no contribution to that event. This contention was hotly disputed by the employer. I doubt whether this causation issue is germane to the matter in any event.

24 A secondary issue raised by the employer is that the smaller rake should have been chocked and hand braked so that it would have held when impacted by the moving wagons. Again the worker joined issue on the matter saying he had chocked the wagons (AT 12, 67).

25 Mr Barrett QC affirmed there was major controversy over the worker's alleged antecedent misconduct employed by the respondent to satisfy the grounds for summary dismissal.

26 Mr Barrett QC contended there was a need to make findings. He referred to the incident on 8 November 1995. The fact that it was regarded as a serious breach by BHP was not to the point. It was for the Deputy President to reach the conclusion on all the evidence. Was it misconduct? Was it wilful? Was it serious? How did it focus the appellant to a matter he had to correct. To what degree was it relevant that this occasion "mirrored bad work practices". That would put a measurement on the incident for the purposes of this exercise. As it stood the matter was unresolved and to the prejudice of the worker's case (AT 16).

27 As to the second incident on 8 March 1997, Mr Barrett QC said it was critical that findings were made. It was insufficient for the Deputy President to conclude as he did if he was to use it as part of the aggregate to "serious and wilful". Otherwise it was near meaningless as no one could deny the appellant was required to be in control of the train: see AB Vol 2 at 376 and AT, 27.

28 The last incident occurred on 29 July 1997. This was the random safety audit. The worker asserted he had applied the air hand brake and there was no risk of the locomotive moving during the time he was absent from it. The worker gave his assurance not to leave his remote control in the unattended vehicle and to chock and hand brake the locomotive. I understood Mr Barrett QC, while disputing some of the circumstances of this incident as described by the employer (ie no brake being applied), to concede that it constituted a breach of procedure by the worker (AT 23). Mr Barrett QC emphasised that the worker's assurance was in respect to securing locomotives and could not constitute an assurance at large beyond the usual observance of the terms of the contract. This raises the issue of a final warning as it may operate in the common law context. I will return to that later in these reasons. But the matter stressed by Mr Barrett QC was that his acknowledgment of error did not constitute any admission of serious and wilful misconduct in the matter.

29 Mr Barrett QC then dealt with the incident causing his dismissal, that of 6 August 1997. The only breaches the worker agreed he had committed were failure to stop before coupling and failing to check the alignment. His reason was the need to complete the job by 8 am and this was the dominant obligation to his employer, overriding the infractions it would involve (AT 6). Moreover neither were causative of the accident, it being caused by the failure of the pins (AT 8). Whether he stopped and started again he still had to impact the lead wagon for coupling to occur. Whether checking the alignment of the couplings would have made a difference was speculation. If misconduct, then it was not "serious". More important, nothing he did was "wilful" in the sense used in law: see AT 32.

30 Mr. Wallwork counsel for the respondent, by letter of 10 February 2000 detailed the six breaches the respondent said occurred on 6 August 1997. All these were put in issue by the appellant save the "stop" and "check" items explained in the preceding paragraph: see reply 18 March 2000 from the appellant's solicitors.

31 It was on the basis of all this that Mr Barrett QC contended the following was a non sequiter:-

"As I have said, following his demotion to a guard as a result of the earlier incident, the worker should not have been under any illusions as to the seriousness with which the employer rightfully regarded his failure to comply with appropriate procedures. Given that the employer had specifically counselled the worker a little over a week before this incident, reinforcing the need to comply with appropriate safety standards, and having regard to the mayhem that could potentially be caused by a locomotive not being properly operated, I think that B.H.P. was justified in acting as it did. It was entitled to form the view that the worker had by his conduct so consistently flouted important safety procedures as to be taken to have effectively repudiated the contract of employment. I think that B.H.P. was lawfully entitled to summarily dismiss the worker for serious and wilful misconduct." (emphasis is mine)

32 I turn to a consideration of the law. In so doing it must be recognised that the tasks of the court involves various aspects. There are findings of fact namely whether the action was wilful and misconduct. There are value judgments combined with fact finding namely whether in the circumstances it was serious misconduct. But that must be in the context of further understandings.

33 In Smith v Underdale Metal Processing (1997) WCTR 53 this Tribunal held the test of serious and wilful misconduct contained in the legislation was the same as that well understood at common law. However to the degree that the 10 points, taken from Hepple and O'Higgins "Employment Law" (3rd ed) were quoted in that decision, they must have added to them the overriding explanation of the authors (par 521) in the following terms:-

"The common law makes a distinction between terms of a contract which are conditions, i.e., important terms, and warranties which are secondary or subsidiary terms. Breach of a condition ordinarily gives the injured party a choice of either claiming damages or of rescinding the contract (summary dismissal in the case of a contract of employment); breach of warranty gives rise only to a claim for damages. The distinction between a warranty and a condition is often difficult to determine, and is usually dependent upon the importance attached by the parties themselves to the particular obligation."

34 That reading from the paragraph immediately preceding the paragraph quoted in Smith is important to bear in mind.

35 So too in Creighton and Stewart, Labour Law (3rd ed), the authors accept the underlying principles for summary termination are the ordinary common law doctrines governing discharge of contracts (par 11.10).

36 The verbiage used by the learned Deputy President on the matter appears to use the language employed by the Court of Appeal in England in Laws v London Chronicle (Indicated Newspaper) Ltd (1959) 1 WLR 698 at 701 where the Master of the Rolls said:-

"I think it is not right to say that one act of disobedience, to justify dismissal, must be of a grave and serious character. I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that you find in the passages I have read that the disobedience must at least have the quality that is `wilful': it does (in other words) connote a deliberate flouting of the essential contractual conditions." (emphasis is mine)

37 In Hackshalls Ltd v McDowell (1930) AR (NSW) 620 Cantor J said (629):-

"Now in the present case it is not disputed that there was, on the part of the respondent, disobedience of an order of his employer, but it is necessary to determine, having ascertained what the contract was between the parties, (1) whether the order disobeyed by the employee was one within the terms or scope of the contract, and, if so, (2) whether, applying the principles laid down in the cases cited, to use the language of Gavan Duffy and Starke, JJ. `the conduct of the party who has broken the contract is such that the other party is entitled to conclude the party breaking the contract no longer intends to be bound by its provisions', or, as put by Isaacs A.C.J., `whether his conduct was inconsistent with the maintenance of the relation created'." (emphasis is mine)

38 In Scharmann v Apia Club Ltd (1983) 6 IR 57 at 163 Wootten J stated the matter as follows:-

"Not every breach of contract give rise to a right to terminate it. A breach by one party will give the other party a right to terminate the contract if the breach evinces an intention not to perform the contract or if the term of the contract which has been broken is of vital importance."

39 I would add two further observations. Firstly, the seriousness of the misconduct is not dependent upon proof that misconduct has had in fact serious consequences. Rather the test is the nature of the misconduct itself: see Savage v British India Steam Navigation Co Ltd (1930) 46 TLR 294. Secondly the question of a warning, raised during the debate before us, is relevant in the sense that the right of the employer in a contract of employment is obedience to lawful and reasonable orders and if the employer gives a direction with a warning and it is not complied with, then it may strongly suggest an act of deliberate disobedience or culpable disregard that will constitute a repudiation. But no final warning type situation was involved here.

40 Where a dismissal has been based in wilful and serious misconduct the employer bears the onus of proving that conduct on the balance of probabilities: see North v Television Corporation Ltd (1976) 11 ALR 599, ABEU v Westpac (unreported), Keely J Federal Court 14788.

41 Mr Barrett QC has submitted the error lies in the absence of essential findings by the learned Deputy President. It is an aspect of this that illuminates the difficulty with the decision. That is because the correct approach necessitates the words "serious and wilful" to be applied conjunctively. If the conduct is serious but not wilful the employer's case is not made out. So too if it is wilful but not serious. Lastly if an accumulation is relied (as is the case here) then the conjunctive must be satisfied in respect to that accumulation.

42 In Johnson v Marshall, Sons and Co, Limited (1906) AC 409 Lord Atkinson (416 - 417) dealt with the concept of "serious and wilful misconduct" in the following terms:-

"In Rumboll v Nunnery Colliery Co., Ld. (1899) 80 L.T. 42; Reeks v Kynoch [1901] 18 Times L.R. 34; Smith v South Normanton Colliery Co. [1903] 1 K.B. 204, the Court of Appeal apparently considered that it was not every violation by a workman of a rule, general or special, framed for the regulation of the industry in which he was engaged, or every deviation from, or disobedience of the directions or orders of a manager or superior, however wilful, which could be regarded as necessarily amounting to serious misconduct.

Indeed, if the word `serious' used in this connection is to have any force or weight at all given to it, it must, I think, be held to mean at least that where the risk of loss or injury resulting to any person or thing from doing of any particular act is very remote, or where that loss or injury, even if probable, would be trivial in its nature and character, the doing of that act, however wilful, would not amount to `serious misconduct' within the meaning of this statute, unless indeed the indirect influence of the act done on the discipline of the factory is to make every transgression serious."

43 In Light v Mouchemore [1915] HCA 71; (1915) 20 CLR 647 the court was concerned with whether a particular conduct took the deceased outside the course of employment when a fatal explosion occurred. But in the course of its judgment when considering the judgment of Lord Dunedin in Plumb v Cobden Flour Mills Company Limited (1914) AC 62, the Court commented on the possibilities of the facts amounting to negligence, recklessness or worse still misconduct. None of those would satisfy the higher level again of serious and wilful misconduct.

44 The emphasis on culpable wilfulness distinct from stupidity, blunder or poor decision making, though with good intention, was confirmed in Quill v Ross Brothers Pty Ltd (1960) WCR 18 where the court approved the dicta of Cotton LJ in Lewis v Great Western Railway Co Ltd (1887) 3 QBD 195 at 213 (the phase "wilful misconduct" was considered) in the following terms:-

"Now, I do not think there can be any doubt at all that wilful misconduct is something entirely different from negligence, and far beyond it, whether the negligence be culpable, or gross, or howsoever denominated. There must be the doing of something which the person doing it knows will cause risk or injury, or the doing of an unusual thing with reference to the matter in hand, either in spite of warning or without care, regardless whether it will or will not cause injury to the goods carried or other subject-matter of the transaction."

45 In Taylor v Commissioner for Railways (1970) WCR (NSW) 73 McGrath J at 76 said this:-

"It seems to me that, in the present case, the Commissioner does carry the onus of establishing what, in a criminal Court, would be regarded as mens rea. In other words, he has to establish that the mind went with the act. Of course, it is difficult to establish, sometimes, the existence of mens rea when you are dealing with a matter of this sort, because the applicant worker is the one in total possession of the mind that is said to have been wilful on that occasion. However, it is trite to say, I would think, that, whilst it may be difficult, even without the assistance of the applicant as it were, placing his head upon the block to be chopped off, it is not impossible, and there would be many matters of fact, of a circumstantial nature, which, in the cumulative effect, would clearly establish a prima facie case of wilful misconduct."

46 In Boral Resources v Pyke (1989) 93 ALR 89 at 97 Thomas J cited Lewis v Great Western Railway Co Ltd (supra) with approval albeit the matter for resolution in that case concerned whether a separate question of causation arose in proceedings under the Insurance Contracts Act 1984 (Commonwealth) .The importance of his approval is in the emphasis made upon the dicta in the Lewis Case of the need to have conscious wrongdoing (wilfulness) in addition to misconduct in contrast to negligent and serious misconduct.

47 Derrington J who dissented from the majority's conclusion in Boral nevertheless reaffirmed the explanation found in previous cases to be given to the word "wilful". The latter involving a subjective as opposed to an objective test (109). He said:-

"The element of wilfulness depends upon the extent to which he knew and appreciated the significance of this particular danger or a possible but not necessarily identified danger and deliberately courted it. The inquiry must be limited to the man himself, for his actions could only be wilful to the extent of his awareness of the possible danger and his deliberate recklessness of it. Consequently it is not a question as to what he should have known but what he is either shown to have known or must have known about this subject, or alternatively whether he was deliberately and recklessly indifferent. So far as it differs from this the element of seriousness depends upon more than mere negligence and requires a serious failure which is not deliberate or intentional to guard against the possibility of some such danger."

48 In Fernandez v State of South Australia (unreported S4705 dated 28 July 1994), the Full Supreme Court considered a case where no issue existed regarding the deeds being misconduct and wilful. The issue at stake was whether it was serious misconduct within the meaning of s 56 of the Workers Rehabilitation and Compensation Act, 1986. Debelle J with whom the other Judges concur expressed his opinion on the submission that serious misconduct essentially involved a tendency to increase the risk of injury to the worker or damage to property in the following terms:-

"There is nothing in Richards v Faulls Pty Ltd to suggest that the test is the sole criterion by which to determine whether a worker has been guilty of serious misconduct or that it is an essential element of serious misconduct that the misconduct has a tendency to cause serious injury or serious damage. The position is correctly stated in Willis's Workmen's Compensation (37th ed) at 153:

`No general principle or rule can be enunciated which will enable one to discriminate between an act which is "serious" and one which cannot be so termed. Each case must depend on its peculiar facts.'

Indeed the House of Lords in Johnson v Marshall, Sons and Co Limited emphasised that said it was impossible to give any general definition of the expression `serious and wilful misconduct' and that it is a question of fact to be determined in every case as it arises: see for example Lord James at 412.

The seriousness of the misconduct must be assessed by reference to the misconduct itself not by reference to its consequences: Johnson v Marshall Sons & Co Limited (supra) at 411 and 414. At p.414 Lord James illustrates the proposition in this way:

`A man may be told not to walk on the grass. He does so, slips up and breaks his leg. The consequences are serious, but the misconduct is not so.'

Misconduct might consist of (sic) in a breach of rules or instructions as to the use of plant or machinery or in a breach of other rules governing the workplace. It might consist of a single act or a series of acts. Furthermore, it is not limited to the contravention or a series of contraventions by the worker of his employer's orders or instructions. It may arise out of actions on the part of the worker which show disregard for the duty of care he owes to his own safety and to the safety of others: Smith v Wemyss Coal Co Limited (1927) 21 BWCC 483, 491. It is also necessary to keep in mind that it is impossible to view any of the particular acts or stages, into which the worker's behaviour may (upon a logical analysis) be broken up, in isolation. In other words, the quality of any particular act cannot be determined apart from the circumstances surrounding it: Smith v Wemyss Coal Co Limited (supra)."

49 Lastly I refer to Stacey v BHP Co Ltd (1974) 41 SAIR 1067. That was a case where the employer argued the work caused injury was attributable to the worker's serious and wilful misconduct. The worker had two jobs, as a taxi driver and as a plant operator with BHP. He worked as a taxi driver from 8 am until 11 pm except for two breaks during one of which he slept for about two hours. He then drove 30 miles from Whyalla to Iron Knob to work for BHP as a haul pack truck driver. His shift started at midnight. The job entailed him driving up and down a quarry face. At 4 am there was a crib break. He drove his truck to a cliff face left the engine running in neutral and applied the hand brake. He then deliberately took an unauthorised nap. At 6 am he woke up released the hand brake, engaged the truck into first gear, missed the guideposts and drove over the edge of the cliff falling some 45 feet to the ledge below. He survived this fall. BHP, as in this case, contended the circumstances demonstrated not only serious but wilful misconduct (1074). In finding against BHP's contention of wilful, Stanley J relied on inter alia Johnson v Marshall, Sons and Co Ltd (supra) and Lewis v The Great Western Railway Company Ltd (supra).

50 I return to some of the facts in this case in the context of those authorities. Mr Barrett QC's primary point is the learned Deputy President has failed to make the requisite findings in disputed areas necessary to decide critical elements including the requisite wilfulness of any and which incidents of serious misconduct. Alternatively if "all of the factual matters were to be resolved in favour of the worker" the requisite wilfulness could not be substantiated.

51 Mr Wallwork contended (AT 46) that sufficient finding existed for the judgment to be upheld. He referred to the passage which assumed all the factual matters in favour of the worker and yet observed the worker acted in specific breach of instructions that he had been given regarding the proper procedure to effect coupling. The seriousness was constituted by the breach of instructions. He did it knowing it was contrary to the undertakings he had given his employer. However that in itself needed findings as Mr Grantham contended. The only undertakings given were in relation to the securing of locomotives (AB 576). Moreover he claimed he had chocked the vehicles (AT 67).

52 A matter of further concern for the trier of fact arises because of the worker's contention that he understood his duty was to have the work done by 8 o'clock and that necessitated taking short cuts. If this was his state of mind I doubt he was "wilful" in the sense understood in law. First principles governing the approach in law must be kept in mind. That wilfulness must be understood in the context of the worker no intending to be no longer bound by the contract of employment or notifying he was prepared to break vital conditions of it. That is hardly evinced by a case of obedience to one of two irreconcilable directions. That is an issue presenting itself on the facts of this case and with respect one that had to be resolved.

53 I would also make mention of the last of the items of breach raised in the respondent's solicitor's letter of 10 February 2000. That is interfering with the accident scene by altering the result of the accident and removing two of the wagons prior to reporting. As I understand the worker's case that was denied as having been a deed of wilful misconduct. It is also not a matter addressed by the learned Deputy President.

54 The jurisdiction of this Tribunal is invoked if there is a question of law at issue (s 86(1)). I am satisfied that there is a question of law in this matter based on the obligation of the trier of a case to make the critical finding but also on the question of the correct test or tests that must be satisfied if the employer is to discharge the onus of proof.

55 I have reached a conclusion in favour of the appellant in respect to both arguments raised. As Mr Barrett QC has detailed, the reasoning discloses error. If one assumes the acceptance of the case for the worker a finding of serious and wilful misconduct is not available. It is not available on such findings as may be stated or inferred. But also there are essential matters not addressed, such as the irreconcilable requirements the worker asserts he had to meet on the day.

56 In my judgment the matter should be referred back to the learned Deputy President for further hearing and determination. I would allow the appeal.