QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	
	Cincovic v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 101
	
PARTIES:	
	Cincovic, Goran
(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)
(Respondent)
	
CASE NO:
	WC/2014/309	
PROCEEDING:
	Appeal against decision of Simon Blackwood (Workers' Compensation Regulator)
	
DELIVERED ON:
	28 May 2015	
HEARING DATE:
	23 and 24 February 2015
10 April 2015 - Submissions Respondent
4 May 2015 - Submissions Appellant
	
MEMBER:
	Industrial Commissioner Fisher	
ORDERS:
	1.	The appeal is allowed.
2.	The decision of the Regulator is set aside.
3.	The Commission substitutes a new decision that the Appellant's application for compensation is one for acceptance.
4.	The Regulator is to pay the Appellant's costs of and incidental to the appeal
	
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether the appellant's injury arose out of or in the course of his employment - whether employment was a significant contributing factor to the injury - whether the appellant is disentitled to compensation because his injury was caused by his serious and wilful misconduct - whether appellant was trained in the safe use of pallet jacks - whether inducted into the worksite - whether riding a pallet jack like a scooter was an accepted practice within the warehouse - whether workers who had ridden pallet jacks like a scooter had been disciplined and the nature of that discipline - whether crossing over the pedestrian walkway was hazardous - satisfied injury arose out of or in the course of employment - satisfied employment a significant contributing factor - finding not to have engaged in serious and wilful misconduct - s 130 of the Act does not apply - application for compensation one for acceptance.
	
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 130.

Blenners Transport Pty Ltd Employees Workplace Agreement 2009
Australia Meat Holdings Pty Limited v Q-COMP 186 QGIG 527
R.E.C. Group Pty Ltd v Q-COMP (WC/2009/20) - Decision <http://www.qirc.qld.gov.au>
Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25
	
APPEARANCES:	Mr J. Wiltshire, Counsel instructed by Seymour Furlong Lawyers for the Appellant.
Mr P.B. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator) for the Respondent.
	
Decision

[1]	Goran Cincovic was injured at work on 30 March 2014.  Following an application for claim review by his employer, Mr Cincovic was denied workers' compensation by the Workers' Compensation Regulator on the grounds that he had engaged in serious and wilful misconduct.  Mr Cincovic appeals that decision. 

[2]	This appeal considers three issues:

(i)	whether Mr Cincovic's injury arose out of or in the course of his employment; 
(ii)	whether employment was a significant contributing factor to the injury; and
(iii)	whether Mr Cincovic is disentitled to compensation because his injury was caused by his serious and wilful misconduct.

Brief Facts

[3]	At the time of the incident, Mr Cincovic was employed as a truck driver with Blenners Transport based at Darra.  Mr Cincovic worked Saturdays and Sundays.  He had previously worked full-time for Blenners as a truck driver both at its previous depot at Rocklea and later when it shifted to Darra.  His recollection of the times of his two periods of employment does not tally with the payroll records that were tendered.  I consider the payroll records to be more accurate than Mr Cincovic's recollection and will rely on them.  Those records show Mr Cincovic commenced full-time employment on or about 23 February 2011 and continued until about 20 February 2012 when he resigned.  He recommenced employment on or about 27 August 2012.

[4]	On 30 March 2014, Mr Cincovic returned to the depot from making deliveries.  His pallet jack, which is a manual aid used in moving loads, was left at the dock next to the truck.  He went to the office to hand in his paperwork and then to go to the toilet.  When he returned to the truck his pallet jack was not at the dock.  It is required to be returned to the truck for the next driver to use.  Mr Cincovic asked Lee Starling and another co-worker where his pallet jack was and they pointed to the dry area on the other side of the warehouse.  Mr Cincovic went to retrieve it and return it to the truck.

[5]	The evidence establishes that a pallet jack weighs about 150-200 kilograms and does not have any braking mechanism.

[6]	CCTV footage of the incident and the events immediately preceding it was tendered in the proceedings.  This footage shows Mr Cincovic in the warehouse of Blenners riding a pallet jack.  He had his left leg on the left tine and was pushing off the ground with his right leg.  The action was described as "riding the pallet jack like a scooter".  He started riding it in the dry area of the warehouse.  As he did so he turned his head towards Mr Starling before crossing over into the marked pedestrian walkway.  There is some dispute about whether Mr Starling and Mr Cincovic were engaging in banter.  Mr Cincovic says they were not whereas Mr Starling believed they both spoke but could not be certain.

[7]	After Mr Cincovic passed him, Mr Starling ran to catch up with him.  Mr Cincovic was unaware that Mr Starling was chasing after him.

[8]	Mr Cincovic then travelled through a set of doors gliding towards the ramp of the bay where his truck was parked.  Before he reached it Mr Starling kicked the right tine of the pallet jack causing Mr Cincovic to let go of the handles, lose his footing and fall backwards on the floor.  He landed on his back causing him to sustain multiple injuries to his back.

	Consideration

[9]	The Commission notes that English is Mr Cincovic's second language.  Although he can speak reasonable English he struggled at times to substantially comprehend the written word.  Mr Cincovic was also taking a reasonable amount of analgesics at the time of giving his evidence.   The Commission accepts that this medication adversely impacted on his recollection of events.

[10]	The following matters are relevant to the determination of the appeal:

•	whether Mr Cincovic had been trained in the safe use of pallet jacks; 
•	whether Mr Cincovic had been inducted into the worksite; 
•	whether riding a pallet jack like a scooter was an accepted practice within Blenners' warehouse;
•	whether workers who had ridden pallet jacks like a scooter had been disciplined and the nature of that discipline; and
•	whether crossing over the pedestrian walkway was hazardous to Mr Starling.

[11]	Each of these matters will be addressed individually before reaching a conclusion on the key issues raised in this appeal based on the whole of the evidence.

[12]	Had Mr Cincovic been trained in the use of pallet jacks?:  Records of training show that Mr Cincovic had been trained in the use of manual pallet jacks and entry and exit of trucks.  He was required to sign the records attesting that he understood "that is part of my duties to ensure that I work in a safe manner at all times and follow the correct procedures shown to me as part of this training."  These documents were also signed and dated by the Assessor.  The date shown is 11 March 2011.

[13]	The Safe Work Procedure instruction for manual pallet jacks, which forms part of the training, includes a section headed "Training" and the following statements:

"Workers must understand how to use appropriate mechanical aids and safe systems of work.
Training should include information pertinent to the types of loads to be moved, correct postures and techniques, and team procedures where team movement is carried out."

[14]	The Safe Work Procedure instruction for manual pallet jacks also refers to pulling rather than pushing the pallet jack to where it needs to go.  

[15]	Mr Cincovic said that he had not received training in either manual pallet jacks or entry and exit of trucks.  He had been handed the documents out of a window and was required to sign them.

[16]	Craig Woodhead held various positions at Blenners.  As at March 2011 he was the Local Fleet Allocator, later holding the position of Depot Manager at Darra for 12 months commencing April 2013.  He trained Mr Cincovic in relation to manual pallet jacks and entry and exit of trucks.  He denied that Mr Cincovic was simply asked to sign the documents.  As he was new in the role at the time it was not in his interest to take short cuts.  Nonetheless, he agreed under cross-examination that the total amount of training Mr Cincovic received in the two procedures was 20‑30 minutes whereas the training in each procedure was to be 30 minutes.  Mr Woodhead explained that practical training was not required on either procedure because of Mr Cincovic's previous experience.  He took Mr Cincovic through the policies and procedures, read them to him and asked whether he had any questions.  No practical training was provided.

[17]	I reject the evidence of Mr Cincovic that he was simply handed the training documents and asked to sign them.  I found Mr Woodhead to be a credible witness who was prepared to make concessions readily when necessary.  Accordingly, I prefer his evidence where it conflicts with that of Mr Cincovic.  However, it is clear from Mr Woodhead's evidence that his training of Mr Cincovic in the two work procedures was cursory at best.  I am not satisfied Mr Cincovic had any appreciable understanding of the safe and unsafe use of manual pallet jacks or the import of his signature on the training records.

[18]	Moreover, there is no evidence that Mr Cincovic was trained in safe work procedures for manual pallet jacks on his recommencing employment in August 2012.  This is a separate period of employment.  His break in employment was of sufficient length to break his continuity of service.  As he was commencing a new period of employment Blenners should have retrained him in the use of pallet jacks.  In the circumstances I consider the Regulator is unable to rely on any training about safe work practices and procedures for manual pallet jacks given to Mr Cincovic in his first period of employment to establish his state of knowledge about these matters in his second period of employment.

[19]	The Regulator also relies on clause 23 of the Blenners Transport Pty Ltd Employees Workplace Agreement 2009 which provides that employees agree to comply with Blenners' workplace health and safety policies and "not to engage in deliberate conduct that risks the health and safety of the employee or other employees in contravention of Workplace Health and Safety Legislation and company policies".  The Commission accepts that the Workplace Agreement bound Mr Cincovic but notes that he had never seen a copy of the Agreement, which was made before he commenced employment and that while a copy could be provided to all employees, he had not been given a copy.  In the circumstances I cannot be satisfied that the Blenners' Workplace Agreement contributed to Mr Cincovic's knowledge about safe or unsafe work practices especially in relation to manual pallet jacks.

[20]	Had Mr Cincovic been inducted into the worksite?:  Also tendered was a document setting out a list of "Do" and "Don'ts".  It was signed and dated by Mr Cincovic on 11 March 2011 attesting to his having been read the list and that he understood all of those requirements.  Mr Cincovic denied having been inducted, taken through the list or being asked to read it.  He just signed the document because he needed the job.

[21]	The Blenners Transport Induction Representative who signed the document was not called as a witness.  Steve Kajewski, Operations Manager, said that as part of their induction employees were informed that riding pallet jacks was not accepted.  He was not responsible for inducting Mr Cincovic.  The list of "Do" and "Don'ts" which Mr Cincovic signed on 11 March 2011 only provides that a person not "operate machinery unless you have the authority or accreditation to do so".  It does not specifically list unsafe practices.  In all of the circumstances I am not satisfied that Mr Cincovic was expressly informed as part of his induction that riding pallet jacks like a scooter was unsafe or was not authorised.

[22]	The Regulator also introduced the Generic Induction Manual dated August 2012.  This Manual contains a Code of Conduct and has a similar list of "Do's" and "Don'ts" to the abovementioned document.  In relation to the operation of machinery, an extra sentence has been added which expands on the authorisation to operate machinery. 

[23]	There is no evidence that Mr Cincovic was inducted using this Manual despite Mr Cincovic commencing a new period of employment in August 2012.  Accordingly, I am not satisfied that this Manual, including the Code of Conduct and its list of "Do" and "Don'ts" can be relied on as establishing knowledge on the part of Mr Cincovic regarding unsafe or unauthorised use of manual pallet jacks.

[24]	Was riding a pallet jack like a scooter an accepted practice within Blenners warehouse?:  There is conflicting evidence on this point.  Mr Cincovic and the two witnesses he called in support gave evidence that riding a pallet jack like a scooter was commonplace at Darra.

[25]	However, Mr Kajewski and Lorimer Hunt, Warehouse Supervisor, said they had not seen anyone riding a pallet jack like a scooter nor was it an accepted or authorised practice.  Mr Starling also said that he had not seen it happen.  Mr Woodhead agreed that riding a pallet jack like a scooter was not an accepted or authorised practice.  However, he had seen it done at the Rocklea depot.  Although he had not seen it happen at the Darra depot he could not say that it did not happen.

[26]	I reject the evidence of Mr Cincovic that riding a pallet jack like a scooter was commonplace at Darra.  While I note the evidence of the witnesses called by the Regulator who currently work at Blenners reject that such an event happened, it was not part of the Regulator's case that an employee riding a pallet jack never occurred.  The Regulator contends that the evidence from its witnesses establishes that multiple employees were not doing this regularly without consequences.  I rely on the evidence of Mr Woodhead to find that riding pallet jacks like a scooter was uncommon but it did happen from time to time.  

[27]	From the safe work procedure instruction for manual pallet jacks which refers to the method of handling it could be inferred that any other way of handling the pallet jack was not a safe practice.  I am prepared to accept that riding a pallet jack like a scooter was neither accepted nor authorised by Blenners.

[28]	However, given it has been acknowledged by the Regulator and accepted by the Commission, that riding pallet jackets like a scooter happened occasionally, it is clear that no steps were taken by management to inform workers that it was unsafe.  No signs or warnings are in place to that effect in the workplace.  There was nothing in the Blenners' documents that were tendered that specifically address unsafe handling practices in relation to manual pallet jacks.  In regards to Mr Cincovic in particular, Mr Woodhouse acknowledged that he had not instructed him not to ride the pallet jack like a scooter.  Further, no evidence was produced showing that Mr Cincovic was present at any tool box meeting or other type of meeting where he was informed not to ride pallet jacks.  

[29]	What discipline would be given to workers who had ridden pallet jacks like a scooter?:  Mr Cincovic said he had ridden the pallet jack in front of both Mr Woodhead and Mr Kajewski and had not been reprimanded.  This evidence is refuted by both Mr Woodhead and Mr Kajewski.

[30]	Various managers were asked about the discipline that would be given in the event of employees being seen to ride a pallet jack like a scooter.  Mr Kajewski said that he would issue a verbal warning to start with and then a written warning if it continued.  Mr Woodhead said that if he had seen it happen he would stop the worker, give a verbal warning and advise of the correct practice.  Mr Hunt said that not to discipline a worker who was riding a pallet jack would have ramifications for his own position.

[31]	This evidence about the level of the disciplinary penalty is instructive as it goes to the seriousness of the misconduct.  

[32]	Was crossing over the pedestrian walkway hazardous to Mr Starling?:  The pedestrian walkway is marked with two yellow, albeit in parts, faint, lines.  It is designed to give pedestrians safe passage and they receive right of way over workers using equipment such as forklifts.

[33]	Mr Cincovic said he turned his head before crossing over the pedestrian walkway to ensure he was well clear of any pedestrians.  He denied he was engaged in a conversation with Mr Starling at the time.  On consideration of the evidence I find that Mr Starling spoke to Mr Cincovic as he passed by on the pallet jack, telling him to hurry up.  It is possible that Mr Cincovic responded at that time but I am not satisfied that he said anything later to Mr Starling when he turned his head.  I consider he was turning his head to see whether the walkway was clear, both of pedestrians and other equipment e.g. forklifts.

[34]	The CCTV footage shows Mr Starling running to catch up with Mr Cincovic.  Mr Starling agreed that Mr Cincovic was not cutting him off or causing him any problem.  Further, he believed Mr Cincovic was aware that he was well clear of him.

[35]	On being shown the footage, Mr Kajewski conceded that Mr Cincovic was well in front of Mr Starling, not endangering him or in danger of running over Mr Starling's feet.  He agreed that an operator of equipment has to exercise judgment as to when to cross the pedestrian walkway.  Mr Kajewski also said that if Mr Cincovic had been pulling the pallet jack instead of riding it, Mr Cincovic would not have needed to give way to Mr Starling.

[36]	It is clear that while Mr Cincovic was riding the pallet jack in an unapproved manner, his crossing over the pedestrian walkway was not of itself an unsafe act as he was a sufficient distance away from Mr Starling.

Case Law - Serious and Wilful Misconduct

[37]	The phrase, "serious and wilful misconduct" was considered by Hall P in Australia Meat Holdings Pty Limited v Q-COMP:

"This Court is concerned only with the issue whether the 'wilful misconduct' upon which Mr Richardson chose to engage is properly characterised as 'serious misconduct'. In embarking upon that task, the Court is assisted by the circumstance that the parties are ad idem that in the expression 'serious and wilful misconduct' the word 'and' is used in a conjunctive and not disjunctive sense. It is also conceded by Counsel for the Appellant that the language precludes any argument that 'wilful misconduct' is always 'serious misconduct'. Counsel maintain, in my view correctly, that the circumstance that misconduct is 'wilful' may be taken into account in weighing its 'seriousness'.

The expression 'serious and wilful misconduct' and the rival expression 'serious or wilful misconduct' have been much considered in employment-related litigation and in particular in connection with disentitlement to workers' compensation benefits for over a hundred years, see e.g. Johnson v Marshall, Sons and Co Ltd [1906] AC 409.  Each of the words 'serious', 'wilful' and 'misconduct' is capable of bearing different shades of meaning, Australasian Meat Industry Employees Union v Australian Meat Holdings Pty Ltd [1999] FCA 96 at paragraph 87 per Dowsett J.  In the present context, notwithstanding that the adjective 'serious' is used to describe the misconduct and is not used with reference to consequences of the misconduct, it seems to be settled that the seriousness of the misconduct is to be evaluated having regard to whether the conduct would be attended by the risk of non-trivial injury, see Johnson v Marshall, Sons and Co Ltd, ibid, at 416.  I do not, however, accept the proposition contended for by the Industrial Magistrate in reliance upon the decision of Green CJ in Hills v Brambles Holdings Ltd (1987) 4 ANZ Insurance Cases 60-785, that for conduct to amount to serious and wilful misconduct, it must 'be such as to give rise to immediate risk of serious injury.'.  I respectfully adopt the view of Finn J in Comcare v Calipari [2001] FCA 1534 at paragraph 4, where His Honour said of the quoted passage:

'This usage is unexceptional if it is understood as signifying no more than the converse of trivial injury.  It was intended to signify more than that and apostolate a positive requirement, it can find no justification in the terms of the statute itself, nor in the general run of authoritive (sic) expositions of the formula.'.

Neither do I accept that a claimant worker is disentitled to workers' compensation benefits only where the evidence shows that the worker had 'knowledge of the risk of injury and, in the light of that knowledge, proceeded without regard to the risk', see Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26; (1999) 18 NSWCCR 109 at paragraph 24 per O'Meally J.  The requirement that the misconduct must be 'wilful' adequately protects injured workers who might otherwise lose everything because of a momentary lapse into carelessness.  It is a statutory gloss to go beyond weighing wilful risk taking in the balance and to confine s. 130 to such cases.  For the same reason, I also reject the proposition of Green CJ in Hills v Brambles Holding Ltd (1987) 4 ANZ Insurances Cases 60-785, that the defence is available only where the misconduct is 'accompanied by an appreciation of the risk which is involved in it.'.  The preferable approach is that of Derrington J in Boral Resources (QLD) Pty Ltd v Pyke [1992] QdR 25 at 43, that the 'necessary knowledge and appreciation need not descend to particularity' and that an 'appreciation of possible danger or of factors which might enlarge it' may be sufficient to justify characterisation of the 'wilful misconduct' as 'serious'.  Beyond those observations, it seems to me that the relatively simple language of s. 130 should not be overlayed with gloss and the question whether 'misconduct' is to be characterised as 'serious' should be dealt with as a jury question, compare Boral Resources (QLD) Pty Ltd v Pyke [1992] 2QdR 25 at 33 per Thomas J."

[38]	In the decision R.E.C. Group Pty Ltd v Q-COMP, Asbury C drew on the judgment of Derrington J in the case of Boral Resources (Queensland) Pty Ltd v Pyke referred to by President Hall in Australia Meat Holdings.  She said that although Derrington J was considering a case concerning an insurance contract, he provided some useful guidance on the construction of the essential phrase "serious or wilful misconduct".  He observed that because it is a substantial detriment for an employee to be deprived of the relief provided to employees generally by the section, appropriate caution must be exercised in its construction.

[39]	In considering the term "serious misconduct", His Honour Derrington J held that it must be something significantly worse than negligence and "must imply the need for such a degree of gravity as to make it fair and just that the employee should be deprived of the benefit of the relief."  Further, it was held that:

"In order to be serious, the misconduct, although it may be so, need not be wilful in the sense of demanding recognition of its wrongfulness or deliberately reckless disregard of the risks ...".

and

"… although the standard is objective, this does not mean that factors personal to the (employee) should be ignored."

[40]	In relation to the term "wilful misconduct" Derrington J held:

"First it may amount to intentionally causing the loss.  Secondly … it may alternatively mean an intentional or deliberately reckless course of misconduct with knowledge that it is dangerous and wrong, that, is an unreasonable perseverance in it with a recognition of its wrongfulness and a reckless disregard of any risks...". 

	Conclusion

[41]	Was Mr Cincovic engaged in a frolic of his own?:  The Regulator submits that Mr Cincovic's injury did not arise out of or in the course of his employment because he made a deliberate decision to engage in a frolic of his own as part of the banter and horseplay that was occurring with Mr Starling on 30 March 2014.  This frolic broke the chain of connection between his injury and his work duties.  The Appellant rejected this submission arguing that Mr Cincovic was engaged in performing his job by returning the pallet jack to the truck as required by his employer.  Further, it was Mr Starling who engaged in horseplay or skylarking by kicking the tine of the pallet jack.

[42]	The evidence establishes that on returning to his truck after submitting his paperwork and going to the toilet, Mr Cincovic found his pallet jack had been removed to the dry area of the warehouse.  He went to retrieve it to return it to the truck ready for use by the next driver.  As he was a little tired he decided to ride the pallet jack back to the truck.  This was a method by which he could more quickly return the pallet jack to the truck so that he could cease work for the day.  By returning the pallet jack to the truck ready for use by the next driver, Mr Cincovic was performing his duties.  I am not satisfied that Mr Cincovic understood at the time that his means of returning it was not approved or unsafe.  It was in fact both of these things but nonetheless, it was a practice that happened occasionally.  

[43]	Pallet jacks are heavy pieces of equipment and do not have a braking mechanism.  I accept that they are not designed to be ridden.  However, the CCTV footage shows that Mr Cincovic had control of the pallet jack and was not riding it fast or without care.  That he turned his head to check the pedestrian walkway was clear before crossing over it is indicative of this.  He was slowing down as he reached the ramp and could not be expected to know that Mr Starling had chased after him.  Except for Mr Starling's intervention he would have reached the truck without incident.  

[44]	I am not satisfied that Mr Cincovic and Mr Starling were engaging in banter.  The evidence only establishes with any degree of certainty that Mr Starling made a remark to Mr Cincovic as he was passing.  The evidence does not support a positive conclusion that Mr Cincovic was engaged in banter with Mr Starling.  Mr Cincovic was not racing anyone or riding it for fun.  As a result I do not consider that by riding the pallet jack Mr Cincovic was engaging in banter and horseplay with Mr Starling.  

[45]	In the circumstances I am satisfied they injury arose out of or in the course of his employment.

[46]	Was employment a significant contributing factor to Mr Cincovic's injury?:  The Regulator's submissions on this question rely in part on the Commission accepting that Mr Cincovic had engaged in a frolic of his own.  However, the Regulator also submits that the real and effective cause of the injury was Mr Cincovic's deliberate decision to be lazy and use the pallet jack in an unauthorised and incorrect manner.  Had Mr Cincovic been undertaking the duties of his position as instructed he would not have suffered the injury.

[47]	I have previously found that Mr Cincovic was engaged in performing his duties, albeit in an inappropriate way, by returning the pallet jack to the truck.  I have also previously accepted that Mr Cincovic was unaware that riding the pallet jack like a scooter was unsafe or unapproved.  He had not been adequately inducted or trained especially on his return to work in his second period of employment.

[48]	I am satisfied employment was a significant contributing factor to Mr Cincovic's injury.

[49]	Did Mr Cincovic engage in serious and wilful misconduct?:  Section 130 of the Workers' Compensation and Rehabilitation Act 2003 disentitles a worker to compensation when the worker sustains an injury that is caused by the worker's serious and wilful misconduct except in two specific circumstances.  Neither of the two circumstances apply in this case.  Therefore the Commission is required to consider whether Mr Cincovic engaged in serious and wilful misconduct.

[50]	The case law cited above establishes that the conduct must be both "serious" and "wilful" to disentitle a worker to compensation.

[51]	On the analysis above I am satisfied that while Blenners did not condone riding the pallet jack like a scooter and viewed it as a safety risk, it happened in the workplace and was not viewed as a serious safety issue.  This is borne out by the limited amount of training for pallet jacks, especially in relation to unsafe practices; the absence of signs or warnings as well as the lack of reinforcement in tool box meetings.  Perhaps it was treated as a risk that went without saying but workplace health and safety training and training in safe work procedures are designed to ensure that workers are aware of risks and both safe and unsafe practices to minimise harm to themselves and others.

[52]	President Hall said in Australian Meat Holdings that the seriousness of misconduct is to be evaluated having regard to whether the conduct would be attended by the risk of non-trivial injury.  Mr Cincovic's training on manual pallet jacks was cursory and neither it nor the list of "Do" and "Don'ts" touched on the issue.  Given Mr Cincovic was not adequately trained or inducted, I am not satisfied that he was apprised of the dangers of his conduct.  Further, Mr Cincovic's evidence is that he was not alert to the possibility that it carried any substantial risk of injury to himself or others.  He did not see anyone around him and there were no other pieces of equipment near him.  He was intent on keeping the pallet jack under control.

[53]	I have found that riding the pallet jack did happen from time to time and the evidence is that were the practice to occur it would be met with a verbal reprimand or warning.  It was not an offence that would lead to summary dismissal nor was it one that attracted a first and final written warning.  Disciplinary action of the type indicated by Blenners' management shows that riding a pallet jack does not constitute serious misconduct.  Derrington J in Boral Resources held serious misconduct must be more serious than that which would justify immediate dismissal.  Given the likely disciplinary penalties that would be imposed for riding a pallet jack like a scooter I am unable to be satisfied that such behaviour constituted serious misconduct.  At worst it was misconduct.

[54]	"Wilful misconduct" has been determined to be misconduct engaged in deliberately and with a consciousness of wrongdoing or a deliberately reckless course of misconduct with knowledge that it is dangerous and wrong.  Although he deliberately rode the pallet jack, I am not satisfied that Mr Cincovic knew and understood that riding a pallet jack like a scooter was wrong.  I have found that other workers engaged in the behaviour occasionally, although it was not an authorised practice.  He also did not have any understanding that his conduct was inherently unsafe and had no knowledge of the possible dangers of his conduct or factors that might enlarge it.  He could not reasonably have appreciated the possibility of Mr Starling chasing after him and that he was going to kick the pallet jack.  He had looked behind him to ensure that no one or other equipment was close by before crossing the pedestrian walkway and continuing on to his truck.  His conduct could not be described as reckless.

[55]	For these reasons, I am not satisfied that the act of riding the pallet jack like a scooter constituted wilful misconduct.

[56]	In light of these findings it follows that Mr Cincovic's injuries were not caused by his serious and wilful misconduct.  Accordingly, s 130(1) of the Act does not apply.

Orders

[57]	The Commission Orders as follows:

1.	The appeal is allowed.
2.	The decision of the Regulator is set aside.
3.	The Commission substitutes a new decision that the Appellant's application for compensation is one for acceptance.
4.	The Regulator is to pay the Appellant's costs of and incidental to the appeal