By Kelly Godfrey

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

In OneSteel Recycling Proprietary Limited v Workers’ Compensation Regulator (2017), the regulator rejected the excavator operator’s workers’ compensation claim, given the workers’ own conduct contributed to his injuries. OneSteel’s decision was overturned on appeal. OneSteel, which is self-insured, then appealed to the Queensland Industrial Relations Commission (QIRC).

The verdict

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

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

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

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

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

The lessons for you

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

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