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[2016] AATA 271
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2016-04-29
Original judgment source is linked above.
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment. (emphasis added)
Ms McKenzie's Application for Review of Decision, dated 29 December 2014 (T2 at 4)
The applicant suffered an injury at work on or about the 12th August 2014.
The injury suffered was a psychological injury due to stress.
The applicant has incurred medical expenses and lost time from work and continues to be unfit for work.
The employer has refused compensation and following an internal review made on the 31st October 2014 continues to refuse compensation.
The applicant seeks a review of the decision to refuse compensation as she considers that the employer has incorrectly applied the law to the circumstances of her injury.
Statement of Ms McKenzie dated 12 August 2014 (T7 at 19)
Before the actual incident I was unloading a 20' container under the awning to put stock in to the warehouse. Whilst I was doing this I noticed my driver (Tony) had entered the yard to collect the next order to deliver. Then I proceeded inside with stock from container with the idea of grabbing the next 2 pallets for Tony's truck after he parked in front of the awning, I have then gone and grabbed the pallets and began to proceed back out of the warehouse, sounding my horn as required, Tony has parked and I headed towards his truck to put the pallets on. Then I hit something and a couple of seconds later I saw that I had hit someone and saw Mark lying on the ground in pain. I immediately reversed the forklift backwards and got straight off to see how Mark was. Mark has said get help and I immediately ran to the office to grab someone. I yelled someone help no one came to aid immediately so then I ran to the lunch room and got Joshua Copley and he ran over with me to assist immediately, everyone began to follow suit after that. After establishing that Mark was responding accordingly I decided to dial 000 and arranged to get an ambulance out straight away. After that I checked with Mark if he needed anything & how his pain was. 15 minutes later ambulance still hadn't arrived so I called 000 again to find out their whereabouts and had to wait until they arrived, approx 45 minutes after incident Ambulance arrived and attended to Mark and took him to hospital.
Approximate time of incident 13:40 pm
My forklift tyres were approx 15cm off the ground. I had 2 pallets on at the time weighing 2.4tonne total.
I was travelling at a slow speed.
Mark was walking at the time towards his truck which was beside the container that I was unloading. He had left the lunchroom and was walking diagonally towards his cabin.
The direction I was heading towards Tony's truck put him out of my line of sight. [sic]
Letter from K & S Freighters to Ms McKenzie dated 13 August 2014 (T9 at 24)
You were involved in a serious workplace accident yesterday where a fellow employee was injured.
Within the investigation process yesterday you were requested to attend a drug test, and you refused.
The Company is committed to investigating this incident and requires you to attend a drug test today as per the following details below. In line with our Drug and Alcohol Policy (as attached) you are required to participate in a drug testing process.
The Company will-consider a second refusal of this-testing process-as unreasonable and therefore will consider-your ongoing employment-with the Company.
The details are as follows:
Date: 13 August 2014
Time: 1:20 pm
Location: Malaga
Cnr Alexander Drive & Beach Rd
Malaga WA 6090
[sic]
Email from Sharmaine Pearson to Ashley Carnell, dated 14 August 2014 (S43 at 183)
I received a text message at 10.10am from Aleisha to say that she had been to the doctor and the doctor told her not to be driving or at work till Monday, she is still in shock, not sleeping well and has a headache.
Aleisha said she didn't receive the letter till approx 3pm yesterday so she didn't make the appointment, they will need to reschedule her appointment for Monday.
Email from Ashley Carnell to Kaye Evans, dated 15 August 2014 (S31 at 147)
Whilst I was taking a statement from Aleisha attached above, I told her I think she should go for a drug and alcohol test. I advised her that if she was my employee (i.e. reported to me) I would force her and not give her an option.
She indicated to me that she had done something Saturday and then she feared she would fail.
I said to her that either way she should eliminate this as a contributing factor and move on
She then agreed with me and decided she would go for a cigarette.
I then found Sonic Health's number and by the time I began to call the number she had come back in and told me to stop she didn't want to do it.
I said I think she was doing the wrong thing but as I didn't think I could do anything I left it alone.
In the mean time matt had rang me and advised that there was not a lot he could do from the hospital and that the employee had suggested that Matt goes I drove and got Matt
I didn't see Aleisha on my way out
I then spoke with Sebastian Hill on the way to get Matt who advised that I should have forced her and that he would speak with you in the morning. [sic]
Letter from K & S Freighters dated 9 September (no year - but assumed to be 2014) (S32 at 149)
I write to confirm details of our discussion today in relation to the incident at Kewdale Regal Transport on Tuesday 12th August 2014.
You were involved in an accident where your forklift collided with a fellow worker.
At this stage of the investigation we have determined the following:
The Company considers the above issues to be reasons to consider your actions as unacceptable workplace behaviour and is therefore considering termination of your employment.
You are provided the opportunity to respond to these current finding [sic] prior to us making a final determination. You are further reminded you have the right to have a support person
Please provide this information to us by COB 10th September 2014, and we will consider and provide you with the outcome of our consideration on Friday 12th September 2014 at 11am.
Letter from K & S Freighters to Ms McKenzie dated 16 September 2014 (T19 at 61)
I write to confirm details of our discussion today in relation to the incident at Kewdale Regal Transport on Tuesday 12th August 2014.
You were involved in an accident where your forklift collided with a fellow worker. You were provided the opportunity to respond to claims as follows:
The Company has considered your responses to the above issues and have determined that your actions as unacceptable workplace behaviour as unsafe forklift driving and failure to take a drug test when requested following a serious incident.
Therefore it is with regret l advise you that the Company is terminating your employment.
Letter from K & S Freighters to Ms McKenzie dated 18 September 2014 (T20 at 64) - "the Determination"
DETERMINATION
In accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988, I hereby determine that:
"... Hit driver to ground then started panicking and sickness, dizzy, upset, and scared to get on forklift."
"... Someone walked out of my line of site straight into path of my forklift and I hit him."
"... Aleisha was involved in an incident where as in the process of loading a truck with 2 pallets struck Mark Warren with the pallet as he walked through the yard from the lunch room to his truck parked parallel to containers."
"... Aleisha gave what assistance she could, alerted the office and lunch room workers, and called the ambulance."
...
"... You were involved in an accident where your forklift collided with a fellow worker. You were provided the opportunity to respond to claims as follows:
... The Company has considered your responses to the above issues and have determined that your actions as unacceptable workplace behaviour as unsafe forklift driving and failure to take a drug test when requested following a serious incident_."_ [sic]
"... Therefore it is with regret that I advise you that the Company has terminated your employment_"_
_"_14 - Compensation for injuries
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted. Unless the injury results in death, or serious and permanent impairment_."_
"... 6 - injury arising out of or in the course of employment
(3) Subsection (1) does not apply where an employee sustained an injury:
(a) while at a place referred to that subsection; or
(b) during an ordinary recess in his or her employment
If the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury."
As you [sic] claim has been denied I have attached outstanding medical invoices for your private settlement.
Ms McKenzie's Response to "Show Cause" letter in relation to employment termination (undated) S34 at 151)
RE: Confirmation of Incident Investigation
In response to our teleconference and official letter conducted on 9th Sept 2014,
It was only after the ambulance had left the yard did the absolute shock and horror of what had just happened hit me. My emotions went into overdrive and it was said to me that I was a mess. It was only after I tried but failed to calm myself that I went into the office to make a statement, after the conclusion of the statement it was suggested that it would be in my best interest to have a drug test done. Firstly I had replied no to this as all I wanted to do was go home and lie down as nausea was taking over suddenly and I wanted to throw up. I was in a confused, fragile state and I couldn't think straight. Which was why I changed my mind and then said I would go for one. at no stage during this time did I mention that I had taken something on the weekend. I was overcome by nausea again, now including uncontrollable shakes, I decided I needed to get home where I knew I would have a better chance in calming down. Not once did I refuse any drug test, as you claim I did, because I was never told I must go nor ordered to go! Therefore I cannot refuse what I have not been told to do, no one seemed to know what to do.
In reference to the text message you sent me regarding the same test, as I had explained to you in a reply text and in conversation today, my work phones battery had died and I had no means of charging it as my charger was still in my truck. I received the charger on the morning of Friday 15th and charged my phone, turning it on. That is when I received your text and replied to you straight away. Had you actually tried to call my phone you would have learnt that it was off and you would have been given the chance to leave a voice message and/or find another way to get in contact with me i.e. Calling my work office, things would have been very different and I would have been at that appointment. But nothing happened.
I dispute the assumptions made against me and how any reasonable person could come to the conclusion as stated by yourself, on the evidence presented. The whole process was disorganised with no clear direction. And most importantly this company states that the employee is the most important asset. How is it that no one bothered to contact me for a week at the least to see if I was ok and if I needed any help. Nor did anyone, on the day of the incident, suggest that I find a life home because I was in no state to drive. How did anyone know that I even reached my home? [sic]
Fair Work Commission Form F3 - Employer Response to Unfair Dismissal Application dated 1 October 2014 (S39 at 171)
6.1. The Applicant breached her duty of care by failing to follow safe forklift driving procedures (driving with pallets significantly obstructing her view).
6.2. In driving with an obstructed view, the Applicant failed to see the worker until she collided with him, causing him serious injury.
6.3. Multiple refusals to complete Drug and Alcohol tests, comments relating to recent illegal substance use and a history of illegal substance being present in the system indicates that likelihood that the use of illegal substances may be a contributing factor to the incident.
The Respondent acknowledges that this incident was an accident and accepts that it was not the intention of the Applicant to seriously injure a fellow worker, however it has been determined that the Applicant's failure to follow safe operating procedures combined with a refusal to undertake a Drug and Alcohol Test (especially given past indiscretions) to be a major contributor to the incident and a breach of duty of care.
Ms McKenzie's Request for Reconsideration of the Determination Regarding Compensation dated 16 October 2014 (T21 at 67)
We are the Industrial Agents representing Aleisha McKenzie (the worker)). We attach a copy of her written authority.
She has instructed us to send you a request for re-consideration in writing including the reasons for the request.
In reference to paragraph 9 of the terms of the Determination, a Statement of Reasons and a Notice of Rights, we respond to the claims as follows:
The worker was not a regular forklift operator although she had her forklift license her everyday role was that of a HR truck driver. The stacking of two pallets on the forklift may be less than ideal but no evidence has been produced to prove that the worker was able to reverse the forklift as she did not have a spotter. Also she was in the warehouse area and not in the yard. There was no requirement in the circumstances where she did have forward vision (albeit restricted), was working in the warehouse and there was no staff member to spot for her.
Although the worker had a less than ideal view the co-worker was negligent in failing to keep a safe look out as he walked in front of the worker and was in a no go zone. The worker could clearly see a person over the 2 pallets but she was focussed on her own driver who was not directly to the front but to the side. The injury was a result of both parties not one.
The worker denies stating she took any substances the Saturday before the drug test. There is no record of the drug test being booked in or scheduled at a clinic and therefore no real offer, acceptance or decline to take the proposed drug test. For this to have any relevance to the workers compensation claim, the employer would need to prove that the accident occurred because of the worker's use of prohibited drugs. No such evidence exists.
The worker was sent a message in the form of a letter to her old postal address where she used to live at home. Given the nature of the message and urgency to respond the HR department should have called or ensured that she received the letter by hand. There was CCTV footage at the old address where the letter was delivered, and this shows the person coming and going and making no attempt to knock on the door.
This is a workplace accident which resulted in injury from the negligence of both parties, it was not malicious or intent of injury towards the fellow worker. It should be deemed as a workplace accident with a formal warning and OHS training to rectify it. There is a clearly lack of safety training provided and enforced by the manager of this workplace, otherwise this incident would not have occurred. The employer has a duty of care to provide a safe system of work, correct protective clothing and competent employees. The alleged drug test is hearsay and there is no evidence of an offer, acceptance or decline of this drug test on record at a clinic or at work. The letter setting the test for 1.20pm on the 13th August 20l4 was not received by the worker in time to attend. The worker notified the office of this and asked for or another appointment but nothing more was heard from the employer.
In reference to paragraph 13 of the terms of the Determination, a Statement of Reasons and a Notice of Rights, we respond to the claims as follows:
The worker's view was not obstructed as she was still able to see ahead and to the side.
The worker did not voluntarily or unreasonably decide to drive the forklift while her view was obscured. She was able to see well over the pallets. She was on a high seat and she is tall enough to have a good view. The lack of staff to spot for her in a reverse situation and her location in the warehouse made it safe to proceed as she did.
In the circumstances of this yard it was not an abnormal risk. The gentleman who was knocked down was not allowed to be in that area. He conceded that he saw the forklift and heard its horn. The risk was not higher than normal. It may appear to be abnormal because of what happened but the test is before the worker drives the forklift. At that time the risk was not more than normal.
In reference to paragraph 14 of the terms of the Determination, a Statement of Reasons and a Notice of Rights, we respond to the claim as follows:
II. Ms McKenzie was aware that driving her forklift forward with a load that obstructed her view was directly against the "K and S guidelines for Forklift Operations" Where it states under 3.5 - Safe Driving Practices- Never proceed forward with a load obstructing your vision - proceed slowly in reverse"
There was no requirement in the circumstances where she did have forward vision (albeit restricted), was working in the warehouse and there was no staff member to spot for her.
III. In doing so, Ms McKenzie accepted a risk of injury and intentionally adopted a practice that could lead to an accident involving a known risk of injury.
There is no evidence that the worker intentionally accepted the risk or intentionally adopted a practice which could lead to a known risk of injury. The driving was safe, she could clearly see over the top of the pallets and to the side so there was no known risk of injury.
IV. Misconduct is serious if it significantly increases the likelihood of injury.
The worker's driving did not increase the likelihood of injury. She could see where she was going. Her attention was focused on her own driver with whom she had to make eye contact. The injured worker was in a no-go zone.
V. Ms McKenzie's deliberate actions of driving her forklift forward with a load that obscured her view significantly increased the likelihood of injury.
The worker's driving did not increase the likelihood of injury. She could see where she was going. Her attention was focused on her own driver with whom she had to make eye contact. The injured worker was is a no-go zone.
VI. Injury was caused by serious and wilful misconduct of Ms McKenzie.
There is no logical connection between the conduct involved and a finding of serious and wilful misconduct as being the cause of the accident. There is simply no evidence to establish misconduct and certainly no evidence to establish any wilful act. The use of the term wilfulness in the section requires some deliberate conscious act on the part of the worker. If she had continued to drive forward if someone had called out to her to stop and she heard that call but proceeded anyway that would be wilful. The employer's investigation failed to establish any element of intent or wilfulness.
There is absolutely no evidence to support the case officer's finding that:
1. The worker was guilty of serious and unlawful misconduct: s14(3)
Accordingly we seek a re-consideration of the decision and a finding that the worker is entitled to workers compensation.
Statement of Reasons of K & S Freighters dated 31 October 2014 (T23 at 74) - the "Reconsideration Decision"
STATEMENT OF REASONS
1. Reviewable Decision
1.1 The matter has been considered in accordance with the provisions of Section 62 of the Safety, Rehabilitation & Compensation Act 1988 (the SRC Act). Taking into account all of the available evidence including the Request for Reconsideration dated 16/10/2014 I have AFFIRMED the Determination dated 18/09/2014.
2. Background
2.1. On the 20/08/2014 Ms McKenzie completed a Claim for Compensation in respect of "stress."
2.2. By Determination dated 18/09/2014 liability was denied in respect of "stress."
2.3. It is noted that Dr Jeff Veiling [sic] provided the initial medical certificate (non Workcover certificate) stating she will be unfit for her usual occupation from the 13/08/2014 to 15/08/2014.
2.4. I note the incident report dated 25/08/2014 states the following:
"... Aleisha was involved in an incident where as in the process of loading a truck with 2 pallets struck Mark Warren with the pallet as he walked through the yard from the lunch room to his truck parked parallel to containers."
"... Aleisha gave what assistance she could alert the office and lunch room workers and called the ambulance."
2.5. Further medical certificates were issued by Dr Simon O'Connell (non Workcover certificate) stating she will be unfit for work from the 18/08/2014 to 23/08/2014 and is receiving medical treatment for "stress".
2.6. I make reference to your request for reconsideration and the following statement:
"... The worker was not a regular forklift driver although she had her forklift licence. "
2.7. The company maintains that Ms McKenzie performed forklift duties on a regular basis and had been trained in safe forklift driving procedures.
2.8. It is further noted in your request for reconsideration the following statements made by you:
"...The stacking of two pallets on the forklift may be less than ideal.
"... Although the worker had a less than ideal view."
"... There was no requirement in the circumstances where she did have forward vision (albeit restricted), was working in the warehouse and there was no staff member to spot for her''
2.9. I now make reference to "K&S Guidelines for Forklift Operation" in particular "3 - Safe Forklift Operation - 3.5 - Safe Driving Practices - Never proceed forward with a load obstructing your vision - proceed slowly in reverse."
3 Findings
3.1 In having regard to all of the available evidence, including the request for reconsideration lodged by Ms McKenzie, I have concluded the following:
3.1.1 Ms McKenzie was considered a licensed, experienced and competent forklift operator.
3.1.2 From the evidence obtained Ms McKenzie's vision was obstructed by the pallets.
3.1.3 It is not within K&S Procedures that a "spotter" is used for general forklift driving.
3.1.4 I am in agreeance with the reasons for the decision provided by the primary decision maker
3.1.5 Consequently, the request for reconsideration provides no cause for me to disagree with the findings of the primary delegate.
4.1. In having regard to all of the available evidence, I am satisfied that the decision to deny liability is correct and has been made in accordance with the relevant provisions of the SRC Act.
4.2. As such, I am satisfied that there is no liability for K&S Freighters to pay compensation to Ms McKenzie in respect of "stress" alleged to have been sustained on the 12/08/2014 and I have affirmed the determination dated 18/09/2014.
Ms McKenzie's Witness Statement filed pursuant to the Direction of Commissioner Williams made on 11 November 2014, dated 16 March 2015 (S40 at 174)
47.1 Failure to follow safe forklift driving procedures - the 2 pallets I had on the forklift had a combined height of 1.6 meters. Following the accident Ed Hartman and I measured the height of the product which I was moving on that day and it was 1.6 meters. The particular forklift I was using is higher model [sic] than other forklifts in the business and I could see over the pallets on the tyres and I could see on either side. At the time of exiting the warehouse I was looking at the direction of Tony's truck and looking to see where he was which meant that my vision was directed away from the area where Mark Warren had entered. I had beeped my horn as I left the warehouse and Mark shortly after the accident stated in writing that he had heard the horn being sounded. Mark was in a no go zone.
47.2 On driving with an obstructed view failed to see the other worker - I didn't see the other worker because he should not have been in that area. Mark had parked his truck under the awning which is not a designated parking area for trucks. Mark had left the lunch room to return to his truck and did not follow the designated walk way to get to his truck. The distance between the warehouse door and where I collided with Mark is about 5 meters. He was [sic] subsequently said that he saw me and heard the horn so I don't understand why he continued to walk in that direction.
47.3 Refusal to take drug test on 12th August 2014 - I was never asked or directed to take a drug test on the day of the accident. As previously stated Ashley Carnell the yard supervisor stated that if it was him he would take a drug test and I agreed that I would do that but never went ahead as I was feeling sick and wanted to get home and rest. I did not say to Ashley or anyone that I would not take the test due to fear of failing it. No drug test was arranged by the employer for me to attend on the afternoon of the 12th August 2014.
47.4 Failure to attend a drug test on the Wednesday - the failure to attend the drug test scheduled for 1.30pm on the Wednesday was through no fault of my own because as previously stated I did not receive the letter or the message on my work phone until after the scheduled appointment. I did not reside at ... and my work phone's battery was flat so I did not receive calls or messages. I was therefore unaware of the appointment for the drug test and I received no further communications from the employer for the test to be re-scheduled.
51, I hold a current license to perform high risk work and a heavy vehicle driver's license.
Letter to "Allison" from Ms McKenzie, dated 'July 23 (4 days ago)' (S47 at 234)
Hi Allison, okay I have attached a few of the documents from the investigation for you to better understand the situation. Once I re-read them again I realised that I have forgotten so much surrounding that time.
The notes below are the ones that I have just summarised for myself prior to attending their councillor, so they remain fresh in my brain, they are not getting submitted to anyone.
Dates to State....
Employed by K&S Freighters 13th Dec 2006
Date of incident 12th August 2014
Date of termination 16th September 2014
Claiming workers comp from 13th August to current date and continuing however long it takes
People involved Mark Warren Person was struck
Ed Hartman My immediate boss
Trevor? The yard union Rep/recruiter
Kaye Evans HR Department/ terminated by her
Mick or Mike? State or National TWU Rep / not employed by our company
I can't think of any others that l may have forgotten, or that hold any importance in this report. We will get to that though if you need any other information I will get it.
After the incident Trevor ran around asking if I had been sacked yet, pointing the finger at me, he was immediately blaming me for the accident even after Mark admitting to being in the wrong.
Frequent bullying because I wasn't in the union, Trevor had tried to turn the whole yard against me. telling all the workers not to talk to me, like we were school kids, All because l wouldn't join the union.
I was picked on by Kaye Evans continuously after Mick or Mike TWU made a complaint about my uniform being non adequate. 65 % of employees did not have on correct uniform, but l was singled out and picked on (photos to prove it)
Trevor and a fellow worker were both involved in an altercation, resulting of them both being stood down for 1 week, the fight was over Trevor running me down and treating me badly.
The company had not accepted ANY responsibility for the incident, whilst making me take all the blame, continually having sickening guilty feelings, when clearly they have a major part in this incident, that is why comcare issued an immediate work order to the workplace.
The day of the incident after I tended to, and organised all first aid aspects, I was left in an immense emotional, fragile and shocked state. Not one person came to my aid, nor offered me a lift home, I drove myself home 30 mins away. I never received any phone calls of concern for my condition. Duty of care was NON EXISTENT
The was [sic] I was driving with the 2 pallets on the forklift was standard practice by myself and my boss nearly everyday, in plain view of the yard managers for well over a year, not once were either of us told to not operate this way
Kaye Evans is on a recording slandering me, without knowing all of the details (no body knows this) She has been out to get me for some time.
the whole incident has ruined my life and removed me from a job that l thoroughly enjoyed and threw all my energy into. Hence being there for nearly 8 years. I had no intentions of leaving this job, but now I find myself struggling to come to terms with the fact that I am unable to think of that work environment without panicking and having what I am told Is anxiety attacks.
Dealing with the fact that I am being solely blamed for what happened when in my opinion.... Company 55%, Mark 30% and myself 15% responsibility. And Mark has returned to work on light duties in the meantime. [sic]
Ms McKenzie's Witness Statement -- filed pursuant to the directions made by this Tribunal dated 18th November 2015
I9. I never refused to take a drug and alcohol test as I was not asked to do so.
37.1 Failure to follow safe forklift driving procedures - the 2 pallets I had on the forklift had a combined height of 1.6 meters. Following the accident Ed Hartman and I measured the height of the product which I was moving on that day and it was 1.6 meters. The particular forklift I was using is higher model than other forklifts in the business and I could see over the pallets on the tyres and I could see on either side. At the time of exiting the warehouse I was looking at the direction of Tony's truck and looking to see where he was which meant that my vision was directed away from the area where Mark Warren had entered. I had beeped my horn as I left the warehouse and Mark shortly after the accident stated in writing that he had heard the horn being sounded. Mark was in a no go zone.
37.2 On driving with an obstructed view failed to see the other worker - I didn't see the other worker because he should not have been in that area. Mark had parked his truck under the awning which is not a designated parking area for trucks. Mark had left the lunch room to return to his truck and did not follow the designated walk way to get to his truck. The distance between the warehouse door and where I collided with Mark is about 5 meters. He was [sic] subsequently said that he saw me and heard the horn so I don't understand why he continued to walk in that direction.
37.3 Refusal to take drug test on 12th August 2014 - I was never asked or directed to take a drug test on the day of the accident. As previously stated Ashley Carrel [sic] the yard supervisor stated that if it was him he would take a drug test and I agreed that I would do that but never went ahead as I was feeling sick and wanted to get home and rest. I did not say to Ashley or anyone that I would not take the test due to fear of failing it. No drug test was arranged by the employer for me to attend on the afternoon of the 12ft August 2014.
37.4 Failure to attend a drug test on the Wednesday - the failure to attend the drug test scheduled for 1.30pm on the Wednesday was through no fault of my own because as previously stated I did not receive the letter or the message on my work phone until after the scheduled appointment. I did not reside at ... and my work phone's battery was flat so I did not receive calls or messages. I was therefore unaware of the appointment for the drug test and I received no further communications from the employer for the test to be re-scheduled.
Witness statement of Edward Hartman dated 20 January 2016 (S51 at 339)
1. I reside at ... in the State of Western Australia.
Witness statement of Ashley Carnell dated 24 February 2016 (S52 at 340)
4.1. Regal Transport which operated a truck quarantine/wash facility on the site;
4.2. DTM which did loading and unloading out of the site;
4.3. K&S Freighters which onsite did warehousing, handled rail and sea freight, inbound and outbound.
Report of Alison Tennant, Clinical Psychologist, dated 15 June 2015 (S47 at 246)
...
Aleisha had an accident at work 10 months ago where she knocked over a man while driving a forklift vehicle. She maintains that the victim of the accident and her colleagues at work support her claim that the accident was not her fault, however, she was subsequently dismissed by one of the bosses who she believes did not like her. Not only has she been traumatised by the accident itself, but Aleisha feels that she was offered no support, that she has been unfairly dismissed and that her workplace of 8 years, where she has been very happy failed in its duty of care to her. Court cases and Workers Compensation claims have ensued and after a harrowing few months she settled for a payout. She was advised to see a psychologist prior to the hearing next month.
...
Report of Alison Tennant, Clinical Psychologist, dated 20 August 2015, addressed to Workclaims Australia
...
Background
According to Aleisha, on the 12th August 2014, she was driving a forklift at her workplace, K&S Freighters, when a co-worker, Mark Warren, walked into her path. Aleisha did not see him as her vision was restricted by the pallets on the forklift. She was also not expecting to have to look out for pedestrians as there was supposed to be an exclusion zone around her. The forklift struck Mark and he was physically injured in the accident. Aleisha immediately jumped off the forklift, called for help and then administered First Aid as best she could. She also called an ambulance and once it came she smoked a cigarette in the rest area to try to calm herself, while talking to some of the staff. After giving a statement she went home as she was not feeling well. She drove herself home, very slowly as she was in a state of shock and nobody offered to take her. She received no calls from work to find out if she had arrived home safely. The following day, she was booked off work by her doctor for a week and she sent a text to inform the office of this. In a series of missed communications, Aleisha was not aware that the drug test that she had agreed to take on the day of the accident was scheduled for that day. Once she was aware of it, despite requesting that it be rescheduled, she was accused of refusing to take it. Aleisha became extremely stressed dealing with all of this and was booked off work for another week and she lodged a compensation claim for workers' stress, whereafter she returned to work under a rehabilitation progamme. Aleisha was dismissed from work on the 16th of September. The reason given was Gross Misconduct. Aleisha contested this and legal proceedings ensued.
...
Symptoms Experienced
...
Aleisha says she is having a lot of difficulty sleeping and is constantly tired. She feels depressed and sad and has no desire to get out of bed. She says she is hypervigilant, anxious, intolerant, has poor concentration and feels unbalanced. She said she still has flashbacks to the accident, nightmares and dreams about death. She has sickening feelings of guilt about the accident, even though Mark Warren, the man who was struck by the forklift she was driving had told her it was not her fault and that he should not have walked out in front of her. She has withdrawn and isolated herself, tending to stay at home far too much. The only times she gets out is to take her dog for a walk, to visit her mother and to attend appointments.
...
Causation
Aleisha said that before the accident at work on 12th August 2014, she used to have a positive, can-do attitude but is now suffering from all the symptoms mentioned above. Apart from experiencing symptoms of Post Traumatic Stress related to the accident itself, she feels that she has been treated very badly by her employers, who, in her opinion, failed in their duty of care to her. Immediately after the accident, nobody came to her assistance. She organised all the first aid to Mark, as best she could and once he had been tended to she was left feeling shocked, emotional and fragile. Nobody inquired about how she was feeling, she was not offered a lift home and nobody tried to contact her to find out how she was or if she had got home safely. She believes that her employers, namely Kaye Evans from HR and Trevor Phyllis, the Union recruiter, blame her entirely for the accident, despite there being clear indications that K&S Freighters failed to enforce the Health and Safety Procedures they should have, as evidenced by the Safety Alert prepared by Ken McCullum, which resulted in an immediate improvement notice by Comcare. Her immediate boss, Ed Hartman, is supportive of her, however he was not there at the time and so does not seem to have any influence on her case. She also feels that she had been bullied and harassed from the start because she has never been interested in becoming part of the TWU.
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Report of Dr Gemma Edwards-Smith, Consultant Psychiatrist, dated 9 October 2015
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HISTORY
Ms McKenzie is a 35-year-old woman who lives in Osborne Park with her long-term de facto partner. They live in premises above the business of which her partner is a director.
Ms McKenzie is presently unemployed and is receiving Centrelink benefits. She reported current significant financial pressures, unemployment, and also that her partner is also experiencing significant financial stressors due to the downturn in his business.
The history of workers' compensation claim pertained to her employment with K&S Freighters. She said that she had worked for the company for almost 8 years as a truck driver. In recent years she had worked at the Kewdale facility, which she described as a warehouse and fright [sic] terminal. She drove trucks in the metropolitan area, and was also a forklift operator: loading and unloading the trucks. She usually worked Monday through Friday full-time. She said that she had generally liked working for the company, and that she had a good relationship with her immediate boss, although she reported that she had experienced some stressors related to her decision not to join the union, and negative comments made by union members, particularly one of the other workers regarding her receiving these benefits while not being a member of the union.
On 12th August, 2014, there had been an incident at work. Ms McKenzie said that she was driving a forklift, as usual. She recalled that it was a very busy day with a lot to do, but that she had been driving the forklift as usual. Unbeknownst to her, one of the other workers, whom she said is a truck driver, had walked in front of her forklift. She said that she did not see the man and that he was apparently walking through an exclusion area, but that she sounded her horn, and apparently then hit him. She said that she had reversed and seen the man on the ground, and that she felt shocked that she couldn't believe what had happened, and that she jumped off the forklift. She said that she had panicked, run to the office and a supervisor, who was on the phone, said to wait a minute and so she ran to the lunch room. She had called an ambulance, administered first aid, and had waited with the man until the ambulance arrived some three quarters' of an hour later. She then broke down, feeling upset and shocked that she had hit someone. She recalled that she had told people to take photographs of the incident at the time, and had felt unwell and nauseous. She had met with one of the supervisors and provided a statement about what had happened, and left work feeling unwell.
Ms McKenzie recalled that she felt that no one had cared about her or offered her support, and that she had somehow drive home feeling very shocked, and thinking constantly that she had hit someone, although he should not have been in that area.
Apparently the man had suffered from a fractured leg. She was unable to see a doctor that day, but had seen a general practitioner the following day and was advised to take time off work. She said that she had experienced difficulty sleeping, worrying about the other worker and the whole situation, and she said that she kept having flashbacks of the incident, and upset that she had injured somebody.
She thought that she had been prescribed a sleeping tablet, temazepam, although she did not fill the script initially, but had ongoing symptoms, including sleep disturbance, and had the remainder of the week off. She said that her boss had advised her to put in a claim for workers' compensation. She had also accessed counselling sessions through the Employee Assistance Programme.
Ms McKenzie said that it had been arranged that she could return to work gradually into the office on light duties. She said that she had felt scared going into work as she had not had any contact with anyone from the office, but that she had gradually felt more comfortable, and had been able to go into the work area. She said that she felt again that there were difficulties with the union members at work, and also that some people had blamed her for the incident. She said that she had been able to do various light office duties, although with no defined role, and she said that by the Friday of that week she was feeling a little more comfortable. She had not been allowed to return to truck driving or forklift duties, but she said that her intention had been to gradually return, certainly at least to truck driving.
She said that Kay Evans from human resources came and that she was given a notice, which Ms McKenzie described as a pending dismissal letter for misconduct. She said that she felt she was accused of deliberately hitting the man. I discussed with her the issue of the drug test. She said that she was not told that she had to go for a drug test, but rather that it was in her 'best interests'. She said that the day of the incident when she was told that it would be in her interest to go for a drug test, she felt sick and went home. While off work, a letter had been delivered to her mother's address regarding an appointment for a test, and by the time she received the letter the time for the appointment had passed. She said that she had called the office to ask for the appointment to be rescheduled, but no one had called her back or discussed it with her further, until she received the letter. She said that she had written a reply, but in response was indeed terminated from employment.
She had pursued a claim for unfair dismissal. The matter had progressed until she eventually settled the matter in April, 2015. The workers' compensation case, she said, was an ongoing dispute, and she was receiving assistance from her lawyer with this matter.
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The Meaning of the term "Serious and Wilful Misconduct"
_[162] Some limited guidance can be found in authorities on the expression "_serious misconduct" or "serious and wilful misconduct". Johnson v Marshall Sons & Co Limited [1906] AC 409 was a case concerning whether the deceased was owed compensation by his employer under the Workers Compensation Act or was disqualified by reason of his own "serious misconduct". Lord James observed (at 414) "that serious misconduct cannot be construed by the consequences of any act. 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". There however, the consequences were essentially for the person who slipped.
[163] More relevant is the observation of Lord Loreburn LC at 411-12:
_"_Further, the Act says it [the misconduct] must be 'serious' meaning not that the actual consequences were serious, but that the misconduct itself was so".
[164] Likewise relevant is the observation of Lord James at 412-3 who emphasised that serious misconduct would be made out if one acted with absolute disregard of the lives and safety of many:
"Now it is impossible to give any general definition of the words 'serious and wilful misconduct'; application of them must be made to each case as it arises. But the use of the word 'serious' shews that misconduct alone will not suffice to deprive the workman of compensation. The class of misconduct that would do so might well be represented by such instances as if a workman, whilst working in a mine on certain seams of coal, struck a match and lit his pipe, or if he walked into a gunpowder factory with nailed boots, refusing to use the list slippers provided for him. Of course, these are but instances illustrating conditions of absolute disregard of the lives and safety of many."
_[12] ..... the phrase "serious and wilful misconduct" comprehends more than negligence, carelessness, or the mere disregard of orders. Breach of a traffic regulation may or may not be sufficient: a carrier who was injured while alighting from his truck, while it was double-parked on a public street, was found not guilty of serious and wilful misconduct (T_homas v Shelley & Sons Cordial Factory Pty Ltd _[1965] WCR 104), but a worker who, having the opportunity to stop, deliberately drove through a red traffic light at high speed was (_Levin v Moulhis [1965] WCR 177).
[14] Third, in Johnson_, Lord Atkinson observed (at 416-17) that not every violation by a worker of a rule would be regarded as necessarily amounting to serious misconduct. For "serious" to have any force, it must mean:_
"at least that where the risk of loss or injury resulting to any person or thing from the 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."
[15] Fourth, the word "wilful" imports that the misconduct was deliberate, not merely a thoughtless act on the spur of the moment (Johnson, per Lord Loreburn at 411), or something done "with the intention of being guilty of misconduct" (Bist v London & South Western Railway Co [1907] AC 209, per Lord James of Hereford). The worker must have had knowledge of the risk of injury and, in light of that knowledge, proceeded without regard to the risk (Sawle; Whittingham).
[17] In summary, the position is succinctly summarised in the following statement by O'Meally CCJ in Sawle_, at [24]:_
_"_Serious and wilful misconduct is conduct beyond negligence, even beyond culpable or gross negligence. In order to establish serious and wilful misconduct, it must be demonstrated that the person performing an act or suffering an omission knows it will cause risk of injury, or acts in disregard of consideration whether it will cause injury. The word 'wilful' connotes that the applicant must have acted deliberately. As it seems to me, in order to establish serious and wilful misconduct, a person accused of it must be shown to have knowledge of the risk of injury and, in the light of that knowledge, proceeded without regard to the risk."
[97] In Whittaker and Department of Defence_, the Tribunal interpreted 'wilful misconduct' as involving "the doing of acts in fact amounting to misconduct intentionally, with knowledge that those acts will amount to misconduct". In that case, proceeding through an intersection against a red traffic light was found not to amount to wilful misconduct because there was no evidence to assist the Tribunal to determine whether it was done through inadvertence rather than deliberately. That is not the case with Mr Kemp, who was aware that he was obliged to wear a seat belt while driving his truck but, as I have found, was not doing so on 20 May 2008. This was not due to mere inadvertence. Rather, it was his practice not to wear a seat belt and his strategy when an accident was imminent was to seek protection under the dashboard. In so doing, I am satisfied that he accepted a risk of injury and intentionally adopted a practice involving a known risk of physical injury in the event of an accident._
[98] As to whether misconduct is 'serious', the Federal Court made the following observation in Comcare v Calipari_:_
"... For present purposes I would note that the word "serious" in the formula describes the misconduct in question and not the actual consequences of it. Nonetheless, because the s 14(3) disentitlement arises where the injury is caused by the misconduct it is well accepted that the seriousness of the misconduct is to be evaluated having regard to whether that conduct would be attended by the risk of non-trivial injury: see Johnson v Marshall, Sons & Co Ltd [1906] AC 409 at 416."
41. It is well established by authorities relating to physical injuries that, at least in such cases, for conduct to amount to serious and wilful misconduct it must be such as to give rise to an immediate risk of injury, "it must be deliberate and not merely a thoughtless act done on the spur of the moment, and it must be accompanied by an appreciation of the risk which is involved in it": Hills v Brambles Holdings Limited (Unreported, Supreme Court of Tasmania, List "A", 20/1987, Green CJ); Johnson v Marshall, Sons and Co. Limited (1906) AC 409 at 411, 415; Richards v Faulls Pty. Limited (1971) WAR 129; Quill v Ross Bros. Pty. Limited (1959) 77 WN (NSW) 94 at 96. It may well follow that, in a case such as this, conduct can amount to serious and wilful misconduct if it is such as to give rise to an immediate risk of incapacitating nervous tension and anxiety, but only if it is deliberate and not merely a thoughtless act done on the spur of the moment, and only if it is accompanied by an appreciation of the risk which is involved in it.
Do Ms McKenzie's actions amount to "careless and wilful misconduct"?
4.1 The Respondent demands safe driving practices in the operation of a forklift at the depot at all times. The Respondent provides clear guidance for forklift operation. In the respondent's safety manual, relevantly at clause "3.5 SAFE DRIVING PRACTICES", the following requirements are relevant to the incident (PT5/12):
➢ Never proceed forward with a load obstructing you vision - proceed slowly in reverse.
➢ Prior to reversing - look in the direction of travel.
➢ Use mirrors and head checks to ensure that your line of travel is clear.
➢ When approaching corners or blind spots slowdown and sound horn before proceeding - proceed with significant care.
➢ Tyres must be lowered as far as possible while travelling.
➢ Give way to pedestrians AT ALL TIMES.
4.2 The Respondent's policy in respect of reversing when the forklift driver's forward vision is obscured is consistent with the national safety regulators guidelines:
➢ If the load obstructs your view while travelling up an incline, get another worker to guide you from a safe position. Ensure all other people are in full view at all times. If you lose sight of them, stop immediately.
➢ Drive in reverse if a bulky load obscures your forward view. However, the load must lead when travelling up inclines. Use another worker, safely positioned, as a spotter in this instance."
4.3 Clause 3.7: PEDESTRIAN EXCLUSION ZONE WHILST OPERATING FORKLIFTS, states:
"Pedestrian traffic (including drivers and loaders) are not permitted within the working area of a forklift whilst in operation - including on the vehicle tray or trailer.
During the loading and unloading process, operators shall ensure that a "safe driver area" is to be agreed between the truck driver and the forklift operator before each load/unload operation.
➢ Immediately beside the truck cabin, on the side being loaded/unload it;
➢ In the truck cabin; or
➢ In another designated safe area such as a yard hut.
When practical, designated load/unload areas should be defined by using safety cones and/or signage.
In the event of an employee, contractor or worker entering the operational area, forklifts are to cease operation immediately until the operational area is free from personnel. If there is a requirement to enter the forklift work area, eye contact must be made with the forklift operator and permission given before entries sought.
Pedestrians not directly involved in the loading/unloading process are required to move through the forklift operating area using the designated safe walkways."
4.4 The respondent requires forklift operators to undergo regular safety competency checks. On 28 March 2014 and 4 April 2014 the Applicant was assessed by her supervisor Mr Hartman as being competent in all relevant aspects of the safe use of a forklift at the depot.
4.5 The Respondent required the supervisor of the Applicant to conduct regular "toolbox meetings" in respect of the safe use of forklifts at the depot. Such meetings took place for example in March 2013, December 2013, February and March 2014 it is recorded that Mr Hartman conducted such meetings and that the Applicant was present.
4.6 Those meetings expressly concerned the Respondent's policies in relation to the safe operation of forklifts at the depot (see S25/120-122; PS25/11a-112; S26/123).
4.7 Moreover, the Applicant was required to and did successfully complete annual training courses from the commencement of her employment with the Respondent concerning forklift operation for examples, see certificates of completion at PS30/136-146.
4.8 The Applicant's training and competency certifications in respect of safety matters in the operation of plant and equipment and the requirements and associated company policies discloses the Respondent's rigorous requirements to ensure a safe workplace through appropriately trained and knowledgeable employees and particularly the Applicant (see PS29/128-135).
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:
(a) the provision and maintenance of a work environment without risks to health and safety; and
(b) the provision and maintenance of safe plant and structures; and
(c) the provision and maintenance of safe systems of work; and
(d) the safe use, handling and storage of plant, structures and substances; and
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
[21] Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces
(1) In this section, person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace, but does not include:
(a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or
(2) The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person.
[29] Duties of other persons at the workplace
A person at a workplace (whether or not the person has another duty under this Part) must:
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
(c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.
In this Division, health and safety duty means a duty imposed under Division 2, 3 or 4 of this Part.
(b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and
(c) the person is reckless as to the risk to an individual of death or serious injury or illness.
(2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.
[32] Failure to comply with health and safety duty - Category 2
(b) the person fails to comply with that duty; and
(c) the failure exposes an individual to a risk of death or serious injury or illness.
[33] Failure to comply with health and safety duty - Category 3
22.1 That the applicant had breached the provisions of the respondent's Guidelines for Forklift Operations -Safe Driving Practices : see T5 p12 Ex 1;
22.2 That the applicant had driven without paying proper attention to the likelihood of a pedestrian or obstacle being on the floor during her operation of the forklift;
22.3 That the applicant probably saw Mr Warren and believed that she could move the forklift around him but didn't manage to do so and thereby collided with him and knocked him over;
22.4 That the applicant simply had no explanation as to why she collided with Mr Warren;
22.5 That the applicant was distracted and was looking towards her driver Tony and therefore did not see Mr Warren walk onto the floor where she was operating the forklift;
22.6 That she had made inconsistent statements about the accident such that her credibility was impeached;
22.7 That by reference to notes found in the applicant's personal medical file held by a treating psychologist at Vision Counselling that she had secretively met with Mr Hartman at a coffee shop to review a draft of the respondent's internal report into the accident: see Ex R2 p311;
22.8 That the re-enactment of the driving of the forklift on the day of the accident carried out with Mr Hartman was flawed because the applicant was not properly seated on the forklift and she failed to tell Mr Hartman of that.
34. The grounds upon which this submission is made are as follows:
34.1 The applicant drove the forklift in a manner which was according to her supervisor Mr Hartman was commonplace to drive forward in the warehouse and only in reverse if the load completely obstructs vision: see Ex R2 p339; in her own words she worked normally on that day going about her duties to get her work done;
34.2 The respondent did not establish that the Guidelines were a term of the employment contract or a Policy binding the applicant, and therefore cannot properly argue that the failure to adhere to the guidelines was evidence of intentional behaviour or conduct or her part to disregard the terms of her employment contract or the respondent's policies;
34.3 The respondent's own internal investigation only found the applicant drove with impaired vision and that a range of other factors contributed to the accident: see Ex R2 p85 and thus it is denied that her conduct caused her own injuries;
34.4 The Comcare report stated that the causal factor in the incident was the respondent's poor management of traffic and the FLT operations in the workplace, while the actions of the applicant in driving forward with impaired vision were found to be a contributing factor: see Ex R2 p161; and thus again it is denied that her conduct caused her own injuries;
34.5 The respondent dismissed the applicant for her part in the incident yet later capitulated to the applicant's unfair dismissal claim in the Fair Work Commission and agreed to settle that dispute in the applicant's favour: see Ex R2 p181,evidence pointing to admission by the respondent that it was wrong in its assertion of serious misconduct then and therefore is now wrong in its assertion of serious and wilful misconduct for the s 14 (3) determination;
34.6 The applicant drove slowly in moving her load before the incident see Ex R2 p333 applicant's statement at paragraph 12 and sounded her horn as she drove out of the warehouse door; see R2 p100 statement of the worker Mark Warren.
40.1 The conduct that she engaged in must be deliberate and not merely a thoughtless act on the spur of the moment;
40.2 The conduct must be accompanied by an appreciation of the risk;
40.3 The appreciation of the risk must be that there was a risk to injury to another worker if Mr Warren breached the site rules and came into her work area and that as a consequence of that there was an appreciation of the risk that she would in turn suffer a psychological injury or mental harm because of her conduct in injuring another worker.
6.1 The Applicant at the relevant time was an employee of the Respondent. The Applicant's employment involved the loading of freight carried on pallets using a forklift and at various times the delivery of such freight driving a flatbed truck.
6.2 The Applicant's normal place of work was at the Respondent's Kewdale depot (the 'depot').
6.3 On 12 August 2014 the Applicant was at the depot using a forklift under a covered loading area (the 'loading area') that led through large double doors to a freight warehouse which was coterminous with the loading area. At the far end of the loading area, and to the right of the shed doors, was a lunchroom and in front of the lunch room were three 20' shipping containers with doors ajar facing towards the loading area in which the forklift would need to manoeuvre to unload the containers (see photo #7: Ex R3). This was also the area the forklift would traverse when coming out of the warehouse with a load intended for loading onto a truck.
6.4 There was also a fourth 20' shipping container on the left side of the warehouse doors at 90° to the shed wall with its door open and facing out. Next to the fourth container a flatbed truck was parked parallel to the container with a number of empty pallets tied down on the truck (see photos #4, #5, and #7: Ex. R3). The truck had been parked in the covered area by another employee of the Respondent a Mr Mark Warren who had left the truck in the loading area without the permission of the Applicant or his supervisor.
6.5 Mark Warren on parking his truck in a 'non designated parking area' (s24/108) went to the lunchroom to have lunch. On leaving the lunchroom at about 1:30 -1:40 PM he did not take a designated walkway as required but walked beside the third container heading toward his truck (S24/100).
6.6 The loading area in which the Applicant could manoeuvre the forklift was under her control and was delineated from other parts of the surrounding area including in the loading area: i.e. areas where the forklift at the relevant time on 12 August 2014 was not being used; by signs, witches hats and painted floor markings. At the entrance to the warehouse there was also a post and sign warning pedestrians that a forklift was operating in the area. A walkway was designated from the entrance/exit of the lunchroom for employees going to or from the lunchroom past the warehouse doors. Pedestrians not directly involved in work assisting with the loading of a truck by the forklift were not permitted to traverse/enter the loading area where a forklift was in operation without the forklift driver's permission and to use the designated walkway that abutted the warehouse all and the lunchroom.
6.7 On exiting the warehouse doors the three 20' freight containers obscured the line of sight of the Applicant from the front and left side on exiting the shed doors (see photo #3 Ex. R3). i.e. any pedestrian coming from the lunchroom entrance and who walked on the outside of the last container i.e. the yard side off the container, instead of following the designated walk way would not have been visible by the driver of the forklift until that pedestrian went past the point of the open doors of the furthest container provided the forklift drivers view was not obscured by the load being transported by the forklift.
6.8 Similarly the fourth container on the Applicant's right would not have been visible by the driver of the forklift until that pedestrian went past the point of the applicant of the open doors of that container. (see photo #3 Ex. R3).
6.9 The Applicant picked up two fully loaded pallets from within the warehouse with the tyres of a forklift (see photo #2 Ex. R3) with the purpose of taking the pallets to a waiting truck driven by another employee of the Respondent identified by the Applicant as 'Tony" (see photo #1 Ex. R3). The Applicant had set the tyres of the forklift, some 15 cm above the concrete floor of the loading area. In her evidence to the Tribunal the Applicant stated that she had initially taken two similarly loaded pallets and placed them down to the right of and towards the rear of Tony's truck before Mark Warren had left the lunchroom. The Applicant returning with two more loaded pallets with the intention of placing them with the first two.
7.1 The Applicant on exiting the warehouse slowly, as she was required to do, sounded the horn of the forklift as a warning to any pedestrian using the designated walkway. Mark Warren, was walking directly from the area beside the third 20' container towards his parked truck. At this point he states he saw the "forklift driver, beeped [sic] the horn I proceeded to the truck didn't think forklift [sic] was coming near me. Then was struck by the pallets from behind. Didn't see her coming has seen her at the warehouse door" (S24/100) (the 'incident').
7.2 Mark Warren was seriously injured sustaining a broken leg. The Applicant called an ambulance and waited with Mark Warren until he was taken to hospital. On the day of the incident the Applicant signed a statement prepared with the assistance of Mr Ashley Carnell the then Operations Manager for the Respondent (T7/19): however, the Applicant was not under Mr Carnell's line of supervision at the relevant time the Applicant being responsible to Mr Ed Hartman the Operations Manager of the Respondent's 'DTM' division (PS52/341: Ashley Carnell's statement).
7.3 The Applicant signed the statement prepared with the assistance of Mr Carnell approximately 30 minutes to 1 hour after the incident occurred: i.e. at approximately 2:30 PM (the '1st account').
"Before the actual incident I was unloading a 20' container under the awning to put stock into the warehouse. Whilst I was doing this I noticed my driver (Tony) had entered the yard to collect the next order to deliver. Then I proceeded inside with stock from container [sic] with the idea of grabbing the next two pallets for Tony's truck after he parked in front of the awning. I have then gone and grabbed the pallets and began to proceed back into the warehouse, sounding my horn as required, Tony has parked and I headed towards his truck the pallets on. Then I hit something and a couple of seconds later I saw that I had hit someone and saw Mark lying on the ground in pain. I immediately reversed the forklift backwards and got straight off to see how Mark was. Mark has said get help and I immediately went the office to grab someone."
7.5 On or about 9 September 2014 the Applicant prepared a statement headed 'RE: Confirmation of Incident Investigation' (S34/151-152). Referring to a telephone conference and a letter forwarded to the Applicant by the Respondent's officers on 9 September 2014 the Applicant states as follows ('2nd account'):
"1. You have stated that I have failed to follow safe forklift driving procedures by driving forward carrying two pallets obstructing my view. As I replied during our conversation the two pallets combined height is 1.6 meters. My view was not obstructed. I can see over the top and on either side. If I was carrying another product, which is substantially higher, a different approach would have been taken, and reversing would have been the only option."
"2. You say that due to me driving with what you assumed was an obstructed view, but I fail to see the worker that I collided with. The worker SHOULD NOT have been walking through my loading area, SHOULD NOT have parked his truck in a non-designated area (right next to where I was working) which could clearly be seen that it was being used. He should have made eye contact with me and asked permission to enter the area if he had followed correct procedures. I did not see the worker because I was following correct safety procedures and focusing on the movements of my driver, who still [sic] inside his cabin, and waiting to make eye contact with an direct him where to go once he had stepped out of his cabin. As always I followed company procedures to maintain a Safe [sic] working environment. I beeped my horn entering the loading area and I was travelling at a slow speed."
7.6 On 22 September 2014 following the Respondent terminating the Applicant's employment an application was made on behalf of the Applicant to the Fair Work Commission by Workclaims Australia ('Mr Mullally') alleging that the Applicant's termination was unfair (PS35/154). At [3.2] of the application the question is posed: Why was the dismissal unfair? The response was:
"This was clearly an accident. Mark should not have been where he was. He heard the horn being sounded whilst the forklift was being [sic] in operation but failed to keep a proper lookout. I was focused on my driver who had left his truck. There is nothing in what I did then or after which constitutes serious misconduct. In my view I do have a good case for unfair dismissal claim" (PS35/157 - the '3rd account')
7.7 In proceedings taken in the Fair Work Commission Mr Mullally filed an "Applicant's Witness Statement" signed by the Applicant and dated 16 March 2015 (S40/174). Commencing at [47.1] of the statement (the '4th account') that Applicant relevantly states:
[47.1] "Failure to follow safe forklift driving procedures - the two pallets I had on the forklift had a combined height of 1.6 m. Following the accident Ed Hartman and I measured the height of the product which I was moving on that day and it was 1.6 m. The particular forklift I was using it is higher [sic] model than other forklifts in the business and I could see over the pallets on the tyres and I could see on either side. At the time of exiting the warehouse I was looking at the direction of Tony's truck and looking to see where he was which meant that my vision was directed away from the area where Marc Warren had entered. I had beeped my horn as I left the warehouse and Mark shortly after the accident stated in writing the he heard the horn being sounded. Mark was in a no-go zone.
47.2 On driving with an obstructed view failed to see the other worker - I didn't see the other worker because he should not have been in that area. Mark had parked his truck under the awning which is not a designated parking area for trucks. Mark has left the lunchroom to return to his truck and did not follow the designated walkway to get to his truck. The distance between the warehouse store and where I collided with Mark is about 5 m. He subsequently said that he saw me and heard the horn so I don't understand why he continued to walk in that direction."
7.8 On 23 July 2015 the Applicant was interviewed by Ms Alison Tennant, treating Clinical Psychologist, and in the course of that interview Ms Tennant records that the Applicant had said (the '5th account'):
"She was driving was [sic] the way she had been for years - two pallets high - her vision was restricted."
7.9 The Applicant provided an unsigned statement in the proceedings, but adopted at the hearing, where relevantly at paragraphs 37.1 and 37.2 she restates a version of the incident identical to that noted as the 4th account.
7.10 Mr Mullally requested that the Determination dated 18 September 2014 be reconsidered (T21/67). In the request Mr Mullally states in response to a finding made in support of the Determination that the Applicant had been driving the forklift with an obstructed view (the '6th account'):
"Although the worker had a less than ideal view the co-worker was negligent in failing to keep a safe lookout as he walked in front of the worker and was in a no-go zone. The worker could clearly see a person over the two pallets but was focused on her own driver who was not directly in front but to the side. The injury was a result of both parties and not one."
7.11 In completing her claim for compensation the Applicant in describing the 'event' that happened and caused her injury stated (PT13/36: [21]): "someone walked out of my line of site [sic] straight into path [sic] of my forklift and I hit him." ('7th account')
Respondent's policies and obstructed view driving the loaded forklift forward
8.1 There is no question that the Applicant had a very thorough understanding of the Respondent's policies in relation to the use of a forklift at the depot and understood when the relevant requirement in the driving of the forklift in reverse was applicable. The Applicant had participated in rigorous ongoing awareness and training programs during the entire course of her employment and acknowledged as much in her evidence ((TS: P-13: and TS: P-20).
8.2 In relation to the applicant's evidence, the applicant adopted her statement swearing she steadfastly maintained that her view in driving the forklift was not obstructed (see 2nd account). However, in her evidence the Applicant conceded that her view was "restricted". In describing what the Applicant meant by her view being restricted she stated: "I could see over the top, partially over the top of the pallets, I could see left and right". The Applicant agreed that she would not have been able to see any person unless they were extraordinarily tall, or even if a person was lying on the ground or there was an obstacle directly in front of her (TS: P-12).
8.3 The Applicant agreed that with a restricted view, having regard to the Respondent's policies concerning the use of the forklift that if she wasn't able to see what was in front of her that she had two options. The first option was in those circumstances that she ought to go in reverse so that the tyres and the load would not obstruct her vision provided that she could turn and look behind or use the rear vision mirrors of the forklift. The Applicant agreed that that was correct (TS: P-12).
8.4 When it was suggested to her that she had stated that if her vision was obstructed and she should have reversed out of the warehouse and around into the loading bay area the Applicant answered: "if I couldn't see in front of me, if it was directly in front of me and it was completely obstructed I would have no choice". (TS: P-13). She acknowledged that the Respondent's guidelines only state when 'obstructed' and not 'totally obstructed' (TS: P-12).
8.5 The Applicant informed the Tribunal that she was very familiar with the heights of various pallets loaded with particular products. In the incident she was aware that the combined height of the two loaded pallets was 1.6 m (TS: P-20). She accepted that in determining the total height of the load when the load was lifted on the tyres was an additional 15 cm (TS: P-21). Thus the total height when the forklift was being driven forward was approximately 1.75 m.
8.6 When asked as to how far she could see over the top of the load when travelling forward she said about 1.3 m and couldn't plausibly explain why she had not seen Mr Warren prior to running into him other than to suggest that she wasn't looking forward but was looking for 'Tony' emphasising that she needed to have eye contact with him in circumstances where she was going to load his truck (TS: P-23).
8.7 Moreover, the Applicant has given differing accounts as to where 'Tony' was immediately before she hit Mark Warren i.e. whether 'Tony' was in his truck or had left his truck, but in any event she never gained eye contact with him knowing he may have been somewhere about (TS: P-29). Indeed in her application to Fair Work Australia at [3.2] it was stated:
"This was clearly an accident. Mark should not have been where he was. He heard the horn being sounded whilst the forklift was being in operation but failed to keep a proper lookout. I was focussed on my driver who had left his truck."
8.8 The Applicant's repeated exhortation during the hearing and in several of her accounts has been that she was not expecting Mark Warren to be in the forklift area despite the fact that his truck was in plain sight and that the Applicant had noticed Mark Warren's parked truck when she returned from her earlier deliveries (TS: P-25): yet despite her experience the Applicant did not evidently have any concern as to the whereabouts of the driver (Mark Warren)?
8.9 Moreover, in the circumstances where another person may have entered the forklift driver's operational area the forklift driver was to "cease operations immediately until the operational area was free from personnel" (PT5/15: [3.7] 'Pedestrian Exclusion Zone Whilst Operating Forklifts').
8.10 The Applicant was unable to give a plausible explanation as to why in the absence of determining precisely where 'Tony' was she did not immediately come to a stop. She did not have eye contact with 'Tony' and from her varying accounts did not know where he was situated. She did not in proceeding: despite her admitted and thorough knowledge of the respondent's forklift operational requirements; do what she was required to do.
8.11 Moreover, the Applicant's account of having approximately 1.3m of unobstructed vision directly in front of the pallets is clearly improbable when one considers the restrictions on vision with two pallets lifted above the ground to an approximate height of 1.75 m whilst moving forward.
8.12 The Respondent tendered 10 colour photographs (R3) that were taken immediately after the incident occurred. Despite the forklift in question allegedly being slightly higher than other forklifts consideration of these photographs clearly establishes that the Applicant's forward vision was not simply restricted as claimed, but in all probability totally obstructed. Consideration of photograph No. 2 depicts the actual loaded pallets involved on the day of the incident. Assuming when the pallets were lifted to the height of 1.75m by lifting them a further 15 cm, the height of the front edge of the top pallet, it is submitted, would be approximately equal to the underside of the blinkers visible under their headlights as depicted in the photographs (see also photographs numbered 8 & 9).
8.13 With the Applicant seated properly in the seat of the forklift with her seatbelt fastened, it would not be possible for her to see directly in front of the pallets. Her view forwards, as such, could not be considered as anything other than obstructed. Clearly the Applicant was relying on the fact that she didn't expect that anyone would be in the loading area.
8.14 It was put to the Applicant that there were two plausible alternatives as to how she came to hit Mark Warren. One was that in fact she did see Mark Warren and in disregard to his safety proceeded forwarded and attempted to bypass him from behind and misjudged where he was. This she denied.
8.15 The other was that her vision was obstructed and because she was not reversing was, in disregard of the Respondent's guidelines, had struck Mark Warren. She denied this too (TS: P-37).
8.16 Mr Hartman's evidence, it is submitted, needs to be considered circumspectly. He was not at the depot on the day the incident.
8.17 He was a 'trusted friend' of the Applicant, although the Applicant, in her evidence, was loath to initially admit that he was because clearly he had provided her with the Respondent's investigation report upon which he had written notes (TS: P-15). The Applicant had to be taken to her own hand written notes to begrudgingly accept that Mr Hartman was indeed a 'trusted friend' (PS49/311).
8.18 Mr Hartman involved himself in a clandestine experiment to 're-enact' the circumstances of the incident in so far as whether the Applicant would have been able to see over the top pallet. This was after the Applicant's services were terminated according to the Applicant's own evidence.
8.19 At paragraphs 7 and 8 of his statement (PS51/39), and unsurprising given his friendship with the Applicant, he states:
_"_I then asked Aleisha to sit in the forklift holding the steering wheel and then walked in front of the forklift to the right and left at various distances from the pallet to determine at which point Alicia would lose sight of me.
In a process where Aleisha could see over the pallets directly in front and right to left when looking in that direction, however there was a shadow area of no visibility directly in front of the pallets. This meant that her view was at that point restricted but not obstructed_."_
8.20 At paragraph 10 of his statement Mr Hartman makes the following extraordinary statement:
"With respect to reversing a forklift when loaded in the way this one was on 12th August 2014, I can say that it was common practice to drive forward in the warehouse. If the load completely obstructs vision then it is necessary to reverse."
8.21 It is an extraordinary statement because it implicitly admits to a common practice over which he was responsible and which was in breach of the Respondent's guidelines in the use of the forklift.
8.22 In his evidence before the Tribunal Mr Hartman estimated that the "shadow area of no visibility directly in front of the pallets" was 2.2 metres in front of the pallets stating "That was the blind spot or the dark area" (TS: P-58). Furthermore, and in complete contradiction of the Applicant, Mr Hartman in his evidence claimed that the Applicant would have been able to see when coming through the warehouse doors in a straight line an obstacle that was 5m to 10 m in front of the Applicant and that "It's only if the obstacle materialised within that area" (TS: P-59).
8.23 Moreover, there is a major discrepancy in the evidence of Mr Hartman and the Applicant as to what area the Applicant was able to see. During the re-enactment Mr Hartman thought the Applicant was sitting as he described it as she was on the day of the incident. It's quite clear that the Applicant was not sitting as Mr Hartman had thought: i.e. back in the seat with her hands on the steering wheel. Rather the Applicant in her evidence conceded she was in fact sitting up on the front edge of the seat looking straight ahead (TS: P-18).
8.24 With the Applicant in that position Mr Hartman was making estimates in relation to what the Applicant could or could not see in moving forward in circumstances that were not present on the day the incident.
9.1 Whether or not the Applicant suffered an 'injury (other than disease) as asserted by the Applicant's closing submissions or suffered an ailment to which the incident significantly contributed resulting in a 'disease' injury is of little moment. The Respondent has accepted that the incident resulted in an injury; and in the Applicant's incapacity for work (see s. 14 of the SRCA).
9.2 The issue is whether in the operation of the forklift the Applicant was in breach of the Respondent's guidelines pertaining to the safe operation of the forklift by exposing Mark Warren and indeed herself to injury.
9.3 It is not to the point that Mr Hartman alleged that it was common practice to drive the forklift forwards rather than in reverse unless the vision of the driver was 'completely obscured' by the load. The question is if the Applicant's forward vision was 'obstructed' then the guidelines required the use of the reversing technique.
9.4 The suggestion that the guidelines were 'not a term of the employment contract or a Policy binding on the Applicant' and, therefore, incapable of evidence of intent, is absurd. The Applicant, as did Mr Hartman and any other employee of the Respondent, has a statutory duty pursuant to s. 29 of the WHS Act to:
"(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
(c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act_"_.
9.5 The finding of an 'internal investigation' relied on in the Applicant's submissions is not germane to the Tribunal's exploration of the evidence and the findings necessary to be made in the Tribunal as to the 'correct and preferable' decision. The 'internal investigation' did not, for example, 'test' the Applicant's many accounts as to the facts and circumstances by cross examination and such evidence that it did rely on was not given on oath or affirmation. The same observation can be made concerning the Comcare investigation.
9.6 In any event, having regard to the term 'impaired vision', the inference to be drawn from the use of such term in its use in context is that the Applicant couldn't see. If the Applicant couldn't see then she was required to proceed in reverse and did not.
9.7 The fact that an application to Fair Work Australia is settled is not evidence pointing an admission that the Respondent was wrong in asserting that the Applicant engaged in serious misconduct for the purposes of dismissing the Applicant. Such settlement is not evidence for the purposes of s. 14 of the SRCA that the Applicant did not engage in serious and wilful misconduct.
9.8 Proceedings involving courts and tribunals are settled for a wide range of reasons that have nothing to do necessarily with the relative merits of either parties' case.
9.9 The fact that the Applicant sounded the horn on exiting the warehouse and drove slowly is indicative of the fact that the Applicant well understood that driving safely and in a manner consistent with the safety guidelines was required. She clearly in doing so and indeed admitted so, is evidence of her cognition of the Respondent's guidelines and with obstructed vision cognisant of the requirement in the interests of safety to proceed in reverse.
9.10 The Applicant hadn't established contact with 'Tony' for example but proceeded forward regardless considering the various accounts given by the Applicant. The guidelines, and indeed common sense, given the potential for injury to herself, of others and damage to property demanded she cease operations immediately: she didn't and in failing to stop was indifferent to the significant risk of harming herself, of others as well as damaging property.
9.11 It needs be borne in mind that Mr Warren had crossed from the Applicant's left from alongside the containers forward of the Applicant, crossing the apron in front of the Applicant and was hit by the front right hand corner of the pallet being driven by the Applicant which had traversed from the warehouse to the point of impact. If the Applicant was travelling at a slow speed (as she said in her evidence) then if her vision was unobstructed or even restricted as she claimed why did she not see Mr Warren given the time that elapses between her leaving the warehouse and the point and location of impact? The inescapable conclusion is that the Applicant's vision was in fact obstructed and she should not have been driving the forklift in the manner she was.
9.12 Consideration of the authorities supra applied to the facts establishes as a question of fact and law that the Applicant engaged in serious and wilful misconduct because she acted in disregard of any consideration whether her acts or omissions may well cause injury to herself, of others as well as damaging property (Sawle).
9.13 The Applicant's acts and omissions were deliberate not merely a thoughtless act on the spur of the moment (Johnson: per Lord Loreburn at 411).
9.14 By analogy where a driver is approaching a stop light or sign deliberately having the opportunity to stop and doesn't - the Applicant could have and should have stopped until she got 'eye contact' with 'Tony but didn't: then she has engaged in serious and wilful misconduct ((Karim v Poche Engineering: per DP Roche; applying Levin v Moulhis_). Similarly the approach adopted by Senior Member Kenny in_ Re Kemp and K&S if directly applied to the extant facts concerning the incident would result in a finding of serious and wilful misconduct.
9.15 Presently all of the authorities that have to be considered and applied in respect of whether serious and wilful misconduct has been committed requires regard to the WHS Act, particularly as to a 'Category 2' offence, which by necessary implication, treats a breach of the duties imposed by that act as serious misconduct.
Firstly: the respondent has not identified what evidence of the applicant it relies upon to enable a positive finding to be made that she had knowledge of the risk of injury and in the light of that knowledge proceeded to continue her work with the forklift without regard to that risk. In the applicant's submission the respondent is drawing a long bow to make the nexus between knowledge and the decision to proceed. The applicant's case is that she drove the forklift on that day in the same way that she always worked.
Secondly: the applicant was not convicted of any offence under the WH&S Act and therefore it is wrong and inappropriate of the respondent to rely upon that assertion to prove serious and wilful misconduct. It submits in effect in paragraph 9.15 that by necessary implication a Category 2 offence will occasion a finding of serious misconduct. Whether that submission is right doesn't matter, the fact is that the applicant has not been charged with an offence or convicted of one. It should be noted that Comcare carried out and inspection and provided a report: R2 p159-163, and no charges arose out of that inspection.
Thirdly: there was nothing clandestine about the re-enactment conducted by Mr Hartman. The suggestion is that it took place after the applicant's employment was terminated. Mr Hartman: R2 S51 states that it was when the applicant came back to work after the accident on reduced hours... The date he nominates is obviously incorrect. According to other evidence the date of return of the applicant to work after the accident was the 3rd September 2014: see R2 p 334 and the medical certificates: R1 54. The applicant was dismissed on the 16th September 2014.
ob·struct
tr.v.ob·struct·ed, ob·struct·ing, ob·structs
1. To block or fill (a passage or opening) with obstacles or an obstacle.
At the time of exiting the warehouse I was looking at the direction of Tony's truck and looking to see where he was which meant that my vision was directed away from the area where Mark Warren had entered.
This was clearly an accident. Mark should not have been where he was. He heard the horn being sounded whilst the forklift was being in operation but failed to keep a proper lookout. I was focussed on my driver who had left his truck.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall
.............[sgd D Brodie].........................
Frederick Charles Adams and Australian Postal Corporation [1993] AATA 355
Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24
Kemp and K & S Freighters Pty Ltd [2011] AATA 312
Re Roberston and CSR Shipping [2001] AATA 325
Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26
Geoffrey William Vines v Australian Securities and Investment Commission [2007] NSWCA 126