Australia: No compo for missing out: injury from failure to obtain promotion not compensable due to reasonable administrative action

Last Updated: 24 January 2018
Article by James Makowiak and Nathan Hepple

RSBQ and Comcare [2017] AATA 1965

Key Points

  • A government worker applied for a promotion, did not succeed, and lodged a claim for psychological injury
  • He alleged his condition was caused by an unreasonable selection process
  • The process was found to constitute a reasonable administrative action taken in a reasonable manner

Background

The Applicant commenced his employment with a Commonwealth Government agency (the Agency) in an APS5 position on 28 April 2005. He began acting in an APS6 position (a higher position) in September 2011. Between July 2012 and January 2013, the applicant's substantive duties were those of the APS5 role which he had initially held. The APS6 position was advertised as a permanent role in 2013. The Applicant applied and was unsuccessful.

The day after being notified by his supervisor of his failure to obtain the position, the applicant e-mailed his supervisor raising a number of grievances with the process. He then took pre-arranged leave a few days later and, upon returning from this leave, produced a medical certificate certifying him unfit for work for the period during which he was away. He then took a further four weeks' unpaid leave and produced medical certificates stating he was unfit for work for roughly five more months.

A fitness for duty assessment was arranged with an independent psychiatrist, who diagnosed the applicant with an Adjustment Disorder suffered solely as a result of the specific stressor of his failure to be appointed to the position.

On 31 March 2014, the applicant lodged a claim for workers' compensation for 'anxiety and depression symptoms', suffered as a result of a 'corrupted recruitment and selection process'. The claim arose as a result of the applicant's alleged faults in the Agency's recruitment process, and his disappointment at failing to be appointed to the APS6 position.

On 26 October 2014, a second claim was lodged. The applicant alleged an aggravation of his condition, caused by an alleged lack of a proper RTW plan following his periods of absence.

Both claims were both determined with a denial of liability. The applicant sought reconsiderations of the determinations, which were both affirmed. The applicant then applied for review of both decision with the Administrative Appeals Tribunal. The Tribunal heard both applications simultaneously.

The law

At Hearing, the Agency conceded that the applicant had suffered an injury for the purpose of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), and that the injury had been contributed to, to a significant degree, by the applicant's employment. The Tribunal was therefore asked to consider wether the injury was suffered as a result of reasonable administrative action (RAA) taken in a reasonable manner.

The Tribunal first referred to the factually similar Comcare v Martin (2016) 258 CLR 467, in which it was held that the RAA exclusion is made out if the disease suffered is a mental condition or aggravation of a mental condition brought on by a failure to obtain promotion, including a reaction to a perceived consequence of the failure to obtain promotion.

It then applied Comcare v Martinez (No 2) [2013] FCA 439, in which the Federal Court approved the Tribunal's reasoning in Re Georges and Telstra Corporation Ltd [2009] AATA 731:

The underlying assessment [of reasonableness] must remain objective... a particular administrative action pertaining to an individual employee [is] usually taken in accordance with a corporate policy framework... [which] often provide the context of a particular administrative action.

The Agency contended that the principles in Hart v Comcare [2005] FCAFC 16 should apply, namely that where there are multiple causative factors of an injury, if any one of those factors falls within the exclusionary RAA provisions in s 5A(1) of the SRC Act, the injury is not compensable. That is, if there are many discrete causes that arose out of, or in the course of, employment, and any one of those causes constitutes an RAA, then the entire injury will not be compensable. The Tribunal agreed.

The relevant 'administrative action' in the present case was the recruitment process conducted by the Agency in 2013 for the APS6 position the applicant failed to obtain. In assessing reasonableness, the Tribunal looked at the composition of the selection panel, training provided to panel members, the availability to the applicant of referees, the maintenance of documents recorded during the applicant's interview, and the coherence of the process with Agency policy.

The second application (regarding an apparent aggravation of the injury) largely tuned on the medical evidence before the Tribunal. It considered the requirement for an 'aggravation' to satisfy the requirements for an ailment within the meaning of s 4 of the SRC Act, and applied McKinnon and Australian Postal Corporation [2001] AATA 297 which required the Tribunal to ask whether an 'aggravating' incident occasioned or brought about any permanent symptoms, or future permanent susceptibility to symptoms.

Conclusion

The Tribunal found that the recruitment process through which the applicant was placed, and which he maintained had caused his injury, constituted a reasonable administrative action undertaken in a reasonable manner.

The Tribunal reinforced its decision by concluding that even if the recruitment process was not reasonable, or carried out in a reasonable manner, a significant causative factor was the applicant's reaction to not being promoted and liability for injury would be excluded due to the principles set out in Hart v Comcare.

As to the second claim for aggravation, the Tribunal found that there had been no medical evidence to sufficiently 'disentangle' the alleged aggravation from the initial injury. No new injury had been suffered and, as such, no ailment existed to satisfy the requirements under section 4 of the Act.

Lessons Learnt

Processes alleged to constitute reasonable administrative actions will be assessed by an objective standard. This involves a separation of a worker's perceived consequences from the objective reasonableness of the administrative action, which is an entirely different consideration. That is to say, the end result does not necessarily make the means unreasonable.

We are also reminded of the need for an 'aggravation' to be different from an initial injury or ailment. If the alleged aggravation cannot be separated from the initial injury, the claim for the aggravation will not succeed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions