When a “punch up” at work is in the course of employment

Summary: A truck driver in NSW was unable to return to work for 12 months after being involved in a punch up at work with two colleagues. He had the matter referred to a different Arbitrator, to receive a re-determination. On his appeal, the NSW Workers Compensation Commission revoked an initial decision to dismiss his compensation claim, and stated that the punch up may have occurred during the course of his employment.

Doohan v North Shore Transport Pty Ltd[2012] NSWWCCPD 42

A truck driver (Mr Doohan) was recently forced to take time off work for 12 months after he was beaten up during a workplace squabble. The incident took place at North Shore Transport Ptd Ltd, a trucking business.

Mr Doohan claimed that two of his colleagues, Mr Ellis and Mr Morton, were involved in an altercation at work and he intervened to try and separate them, in an attempt to diffuse the situation. While in the process of trying to help, he claimed he was distracted by another co-worker who called out to him and was then punched in the head by Mr Ellis three or four times.

Following this Mr Doohan brought a compensation claim over the incident against his employer.

His employer’s insurer denied any liability on the basis that the injuries sustained had not arisen during the course of his employment.

Mr Doohan then brought the claim before an arbitrator of the NSW Workers Compensation Commission (NSWWCC).

While at arbitration, Mr Ellis adamantly disputed Mr Doohan’s version of events, and instead claimed that he was victimised by both Mr Morton and Mr Doohan. He said that during the incident he was held down forcibly and any punches he threw were purely in self-defence.

Mr Ellis went on to state that after he punched Mr Doohan the two men continued to assault him by pulling his jacket over his head, punching and kicking him in the process. Elaborating further, Mr Ellis claims the actions taken by all parties involved were a result of an ongoing feud between the three men, which included Mr Doohan harassing him using racist names. This was supported by evidence presented by a HR officer at the company who showed that Mr Doohan had sent him text messages, following the incident, which included racist references to Mr Ellis.

The arbitrator agreed with Mr Ellis’s version of events and ruled that Mr Doohan had been engaged in gross misconduct at the time of the squabble, and was therefore no longer in the course of employment.

As a result, Mr Doohan was once again denied compensation.

Mr Doohan appealed this decision before the Workers Compensation Commission. After reviewing the case, the Deputy President of the NSWWCC ruled that the arbitrator had failed to properly determine the issues surrounding the incident and had not given sufficient reasoning for her conclusions.

The Deputy President surmised that if Mr Doohan’s version of events was actually correct, and he was actually trying to break up the fight, then he had a strong argument that the injuries he sustained did occur in the course of his employment. The matter has since gone back to arbitration so all parties have the opportunity to present evidence and have it considered properly.