This exclusion was amended to 'reasonable administrative action' by the SRCOLA 2 — 007 (effective 13 April 2007). The amendment only applies where the date of onset of a disease is on/after 13 April 2007. The following sections outline the exclusion as it stands for SRCA claims where date of injury/disease is pre 13 April 2007.

Section 4(2) of the SRCA, in defining the term 'injury' for purposes of the Act, states:

...does not include such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment...

This section therefore deals with compensation cases which arise out of disciplinary action. See Chapter 26 [4] for cases arising out of failure to obtain benefit, promotion, transfer etc.

Cooper J in Chenhall v Comcare (1992) identified that it would be necessary in each case to collect evidence to answer the following questions:

• What discipline or rules of conduct apply to the member?
• In what circumstances can the Defence Force as an employer take action of a disciplinary nature to enforce the discipline or rules of conduct against a member?
• What type of action may the Defence Force take against the member if the circumstances giving occasion to the taking of disciplinary action exist?

The conduct of the member must be tested against this evidence and not by reference to general notions of good order and control of Defence Force personnel.

The Concise Oxford Dictionary includes the following relevant definitions:

disciplinary ad of, promoting, or enforcing discipline.

discipline n. 1a control or order exercised over people or animals, esp. children, prisoners, military personnel, church members, etc.1b the system of rules used to maintain this control 4 punishment.

action n. 1 the fact or process of doing or acting.

Case law relating to 'reasonable disciplinary action' has evolved on the basis of mainly civilian cases and applies an understanding of the term current in a relatively open and liberal civil society. As a result this exclusion is applied in a narrower manner than the above dictionary definition might indicate.

Consequently, Delegates are reminded that 'reasonable disciplinary action' may have a much wider meaning within the ADF, where a more hierarchical system of control is in place, and where individual behaviour is subject to a greater degree of control.

Nevertheless, the ADF has clear processes under the Defence Force Discipline Act for imposing and maintaining order, and in the final analysis the Delegate should be guided by these parameters rather than general notions about the disciplinary culture of the ADF.

Reasonable disciplinary action may include processes such as:

• any process in accordance with the Defence Force Discipline Act, including:

–appearance before an officer on a formal charge of misconduct

–a court martial

• and/or disciplinary consequences of such action e.g.:
• a caution (disciplinary action need not necessarily be designed to punish):
• a verbal reprimand (formal or informal) by a supervising officer/NCO
• imposition of extra duty and/or denial of leave
• monetary penalties
• demotion, confinement to military prison or confinement to barracks etc.
• removal of employment benefits and/or dismissal.

An investigation as to whether disciplinary action is warranted, is not in itself disciplinary action:

...action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition ...

Whether counselling is disciplinary action will depend very much on the facts of the case and the formal disciplinary framework applicable to the member.

In most cases, informal counselling, or warning counselling putting a member on notice to improve performance, would not be disciplinary action, but rather would be a step preceding disciplinary action.

Note, however, that in the case example given below at Section 2 [9]5.1.7 the AAT decided on the facts of that case, that a 'performance review interview' was disciplinary action. Furthermore, where counselling is an integral part of the continuum of disciplinary action, or is a 'punishment' option specified in the relevant regulations, it may be appropriately described as 'disciplinary action'.

Ultimately this is a matter of judgment for the Delegate after fully considering the facts of the case and the disciplinary code or regulations applicable to the member.

Whether the disciplinary action was 'reasonable' depends on the facts of the particular case.

Action would not be 'reasonable' if, for example:

• the employer failed to adhere to the disciplinary process specified in the relevant regulations or code of conduct
• there is cogent evidence of bias, discrimination or victimisation.

1.In Wheeler and Reserve Bank of Australia (1989), the Tribunal considered that certain action was not reasonable, noting that 'after 15 years of employment, and without any prior notice, the applicant was required to report for duty on a day on which officers of the bank knew he would be unavailable. The consequences of non-attendance were not even mentioned in the letter'.

2.In Inglis and Comcare (1997), the Tribunal held that a 'performance review interview' was disciplinary action. Nevertheless, it was not 'reasonable' in that particular case, because of the way in which it had been conducted. This unreasonable element included, inter alia, no prior warning of a serious allegation of breach of confidentiality and a requirement to respond to the allegations immediately.

The claimed condition must be 'a result of' reasonable disciplinary action taken against the member if the exclusionary provision is to operate. Accordingly, the exclusionary provision does not operate where:

• reasonable disciplinary action was taken against the member, but this was not connected in any way with the condition later claimed by the member
• the condition arose from actions undertaken prior to disciplinary action being instituted, or
• there are other contributing factors which make a more than minimal contribution to the ultimate condition, i.e. the disciplinary action must be the sole or predominant cause of the condition. Note that this is a matter for the judgment of the Delegate after considering all of the facts and evidence in the particular case.

In Telstra Corporation Limited v Warren (1997), the respondent had suffered injuries in two motor vehicle accidents. Some time after the accidents, he had been charged with disciplinary offences, including persistent late arrival at work and refusal to follow directions. The Court held that his consequent depressive state was not solely related to the disciplinary action:

...There was evidence that the pain contributed to the depression and to his refusal to drive the vehicle so that it could not be said that the injury resulted solely from the disciplinary charges. It appears to have resulted from the combined effect of the charges and the underlying injury caused by the accident. In my view, it cannot therefore be said that the injury 'resulted' from the charges because it also resulted from the operative effect of the underlying injury and therefore the exclusion in S4 of the Act does not apply...

In cases involving disciplinary action, a member may have the right to commence a grievance procedure against their supervisor or employer.

The processing of a claim for compensation should not be deferred pending the outcome of the grievance procedure, but should be decided on the facts and evidence available to the Delegate at the time of claim determination. This can be justified on several grounds:

• even if a grievance procedure results in a different disciplinary outcome, this does not necessarily mean that the original disciplinary action was 'unreasonable'
• the outcome of the grievance procedure should not be prejudged by a Delegate. As Cooper J pointed out in Chenhall v Comcare (1992):

The Act does not in my view contemplate that as part of the process of determining an entitlement to compensation the applicant or its Delegate is required to make a determination as to the guilt or innocence of the employee of alleged misconduct...

If the outcome of the grievance procedure relevantly alters the facts relied on in determination of the claim, the determination may be varied by reconsideration under S62 of the SRCA.

Neither the 1971 nor the 1930 Acts themselves, contain specific provisions to actively exclude injuries arising from reasonable disciplinary action.

However, for RCG purposes it is reasonable to so exclude new claims made during the currency of this Act (i.e. the SRCA) where the alleged injury is a disciplinary-caused illness contracted under an earlier Act.

Delegates should note that the SRCA is the only Act which is current, and the 'discipline' exclusion is contained within the S5A(1) definition of 'injury' for the purposes of that Act.

Subsequently, S124(1A) effects the 'transitional provisions' by allowing certain claims to be made in relation to injuries under former Acts by referring to '... an injury, loss or damage..' which occurred before the commencing day of the SRCA. 'Injury' in this provision of the SRCA, however, is subject to its own definition of that term. Of course, as related above, that definition itself positively excludes disciplinary-related ailments.

Where the onset of a disease is on or after 13 April 2007 the relevant test will come within the SRCOLA 2007 amendments which is 'reasonable administrative action' rather than 'reasonable disciplinary action.'

Reasonable Administrative Action is defined to include the following in s5A(2):

reasonable appraisal of the employee's performance;

1. a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
2. a reasonable suspension action in respct of the employee's employment;
3. a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
4. anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
5. anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

The policy above relating to Reasonable Disciplinary Action should be taken to relate to Reasonable Administrative Action however noting that 'Reasonable Administrative Action' is a broader test. Delegates should bear in mind that if the condition is as a result of reasonable administrative action (which includes anything in S5A(2)) then it will be excluded from liability. Just as with disciplinary action, the administrative action must be 'reasonable'. If a delegate determines the administrative action is unreasonable, then the claim will not be subject to the exclusion (see 25.1.6 [17] and 25.1.7 [9]).

The exclusion of injuries (incl. diseases and aggravations) arising out of a failure to obtain transfer promotion or benefit from employment is closely related to the exclusion of compensation for injuries arising out of disciplinary proceedings, discussed above. Obviously both refer to disputes with ADF management and are covered by the same exclusionary provision in the SRCA, i.e. the S4 definition of 'injury' under the SRCA:

'injury' means:

1. a disease suffered by an employee, or
2. an injury (other than a disease)..., or
3. an aggravation of a physical or mental injury (other than a disease)...,

but does not include any such disease, injury or aggravation suffered by an employee as a result of ... failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment

The amended SRCA contains the definition on injury in the new s5A, and includes 'failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.'

Note:For any disease claims relating to this exclusion where onset is on/after 13 April 2007, the Delegate should also consider the exclusion includes 'reclassification' and 'retaining a benefit'

A broad approach should be taken to what constitutes a 'promotion, transfer or benefit' for the purposes of the exclusionary provision, provided that:

• it was 'connected with' the member's employment, and
• the promotion or transfer process was correctly carried out (see the discussion of 'flawed process' below).

Post-promotion counselling can form part of the promotion process, particularly if it is a mandatory requirement: Re Parker and Comcare (1996). On the facts of the case, however, the Tribunal found that the post-promotion counselling session 'actually went substantially beyond this goal and degenerated into a broadly based and somewhat hostile career counselling session', which did not fall within the exclusionary provision.

The word 'obtain' means 'to acquire' and does not include the possible meaning of 'to retain'. If a member loses an existing benefit, a condition arising from that loss should be dealt with under the injury or disease provisions of the SRCA.

The Concise Oxford Dictionary defines 'benefit' in the following terms:

benefit n. a favourable or helpful factor or circumstance; advantage; profit.

The following circumstances can be said to involve a failure to obtain a benefit:

• complaints by an employee that his skills and capacities were not being fully utilised by the employer such that he could not demonstrate his fitness for a better paid position: Comcare v Mooi (1996)
• complaints by an employee that he was not receiving training which would fit him for a higher position (as opposed to training necessary to enable him to perform the duties of his position): Comcare v Mooi (1996)
• refusal by supervisors to approve an application for payment of a higher duties allowance: Comcare v Mooi (1996)
• the opportunity to undertake a field trip in connection with employment, with the associated opportunity to make a 'profit' on travelling allowance: Stansfield and Comcare (1996)
• a failure to be allowed to change from full-time to part-time employment was a failure to obtain a benefit as it was quite clear that the applicant 'saw a change from full-time employment to part-time employment as being beneficial to his family situation': Barber and Comcare (1998)
• failure to obtain a permanent position: Trewin v Comcare (1998).

The claimed condition must be 'a result of' the member's failure to obtain a promotion,transfer or benefit if the exclusionary provision is to operate. Accordingly, the exclusionary provision does not operate where:

• the member in fact failed to obtain a promotion, transfer or benefit, but this was not connected in any way with the condition later claimed by the member
• the promotion or transfer process was flawed and this caused or contributed to the condition, or
• there are other contributing factors which make a more than minimal contribution to the ultimate condition, i.e. the failure to obtain must be the sole or predominant cause of the condition. Note that this is a matter for the judgment of the Delegate after considering all of the facts and evidence in the particular case.

If the condition arose where the promotion or transfer process was flawed, the exclusionary provision generally should not be applied as it usually is difficult to establish whether the adverse reaction was a result of the failure to obtain the benefit or of the flawed process (or both).

Note, however, that this general rule could be set aside where the evidence is unequivocal on the issue of causation.

1.In Fitzgerald and Comcare (1995), failure to obtain a promotion was a factor contributing to a stress-related illness, however the 'predominant factor' was an unsubstantiated allegation of fraud by an ex-supervisor.

2.In Myers and Comcare (1997), the applicant developed a stress condition as a result of the way a restructuring of her radiography department at Heidelberg Repatriation Hospital was managed as well as from her failure to obtain a new business manager position. Because the condition manifested before she had actually failed to obtain the new position, the exclusion was held not to apply.

In cases involving promotions, transfers and benefits, a member may commence a grievance procedure against their supervisor or employer challenging the process used or seeking a different promotion or transfer outcome.

The processing of a claim for compensation should not be deferred pending the outcome of the grievance procedure, but should be decided on the facts and evidence available to the Delegate at the time of claim determination. This can be justified on several grounds:

• even if a grievance procedure results in a different promotion or transfer outcome, this does not necessarily mean that the original process was flawed
• the outcome of the grievance procedure should not be prejudged by a Delegate. As Cooper J pointed out in Comcare (1992):

The Act does not in my view contemplate that as part of the process of determining an entitlement to compensation the applicant or its Delegate is required to make a determination as to the guilt or innocence of the employee of alleged misconduct ...

If the outcome of the grievance procedure relevantly alters the facts relied on in determination of the claim, the determination may be varied by reconsideration under S62 of the SRCA.

The policy in the case of a claim for illnesses arising from failure to obtain promotion transfer or benefit under former Acts follows exactly the same lines as for injuries arising from reasonable disciplinary action, outlined at 26.1 [28]

Neither the 1971 nor the 1930 Acts themselves, contain specific provisions to actively exclude injuries arising from a failure to obtain a promotion, a transfer or other benefit from employment.

However, for RCG purposes it is reasonable to so exclude new claims made during the currency of this Act (i.e. the SRCA) where the alleged injury is indeed an illness caused by a failure to obtain promotion transfer or benefit under an earlier Act.

Delegates should note that the SRCA is the only Act which is current, and the 'failure to obtain...' exclusion is contained within the S4 definition of 'injury' for the purposes of that Act.

Subsequently, S124(1A) effects the 'transitional provisions' by allowing certain claims to be made in relation to 'injuries' under former Acts by referring to '...an injury, loss or damage...' which occurred before the commencing day of the SRCA. 'Injury' in this provision of the SRCA, however, is subject to its own definition of that term. Of course, as related above, that definition itself positively excludes ailments related to any failure to obtain promotion, transfer or benefit!

Section 14(2) of the SRCA states:

14(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.

If the medical condition is intentionally self-inflicted, S14(2) bars payment of compensation for an injury (whether resulting in death, incapacity or impairment).

In practice, RCG sees few cases involving self mutilation etc. Most cases which trigger this exclusion are acts of suicide.

Note that the medical condition must be both self-inflicted by the client AND inflicted by their own intentional act. It is NOT sufficient for the injury to be inflicted by a grossly negligent act of the member. Gross negligence may, however, constitute serious and wilful misconduct in certain extreme circumstances.

An injury will not be intentionally self-inflicted, where the client's state of mind is so disrupted that he or she is incapable of forming a clear intention.

The appropriate test for this state of mind is usefully discussed by the Administrative Appeals Tribunal in Re McLaren and Comcare (1992), where work-related stress caused a major depressive illness in the employee which led eventually to his suicide.

The Tribunal found that the employee was insane 'in that he was no longer able to choose whether he would or would not continue to live or whether he could or could not restrain the temptation to suicide'. The criteria for insanity was not the criminal standard, rather the question was whether the medical condition 'dethroned his power of volition'.

Most cases of suicide do not involve the complete dethronements of the power of volition. Insanity and 'dethronement' of a power of volition are medical judgements to which a Delegate may expect an objective answer from a professional person, i.e. a psychiatrist or clinical psychologist who had been treating the client, or who had the opportunity to examine the client, before his/her death. It is not a matter for supposition or inference but requires professional observations of the client's actual mental state, including powers of reasoning and volition. In the absence of such professional observations, Delegates should not conclude, on the basis of their own subjective opinion, that the suicide was not intentional.

Delegates should NOT employ the circular reasoning that a desire to commit suicide is in fact evidence of insanity, or that the act of suicide proves a 'loss of volition'. Nor should Delegates accept such a circular proposal, even if advanced by a professional person. Only objective professional observations about the nature and effects of this particular person's illness and its effects on volition in this particular case, should be accepted. If these are not available, the S1 — 4(2) exclusion from compensation should, as intended by Parliament, be allowed to stand.

A medical condition may still be 'self-inflicted' even if another person is also involved in the infliction of the injury. This would be the case if the injured member actively conspired with that other person and cooperated in the infliction of the injury or death, e.g. where an injured client requested shut-down of life support systems.

Section 27(2) of the 1971 Act reads:

if an injury to an employee is intentionally self-inflicted, the Commonwealth is not liable ...to pay compensation in respect to that injury.

This is essentially the same provision as under the SRCA and the guidance provided in this Handbook should apply equally to similar cases arising under the 1971 Act.

The 1930 Act does not have any provision excluding self-inflicted injuries. Delegates should refer any such case – which are now expected to be very rare – to National Office for policy advice before determining that claim.

An exclusion from compensation on the basis that the client submitted to a greater than usual risk of injury occurs twice within the SRCA.

The first is contained within S6(2) which deals with prescribed travel (i.e. between home and work) and refers to injuries where the client chose a risky route or interrupted the journey in a way that increased the risk of injury. Delegates requiring more information on the provisions of S6(2) should refer to section 18.2 [38] of this Handbook.

The second exclusion relating to unreasonable risk, derives from S6(3) which reads:

6(3) Subsection (1) does not apply where an employee sustains an injury:

1. while at a place referred to in that subsection, or
2. 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.

Unlike S6(2), S6(3) does not apply to travel claims, it only applies to injury sustained:

1. at a place referred to in S6(1), i.e. a place where the client was engaged in:
   • work
   • education
   • obtaining a medical certificate
   • receiving medical treatment
   • undergoing a rehabilitation program
   • receiving a payment of compensation
   • undergoing a medical examination or rehabilitation assessment
   • receiving money due to him or her, or
2. during an ordinary recess in employment.

Note that, because of the drafting of S6(3), consideration of voluntary and unreasonable submission to an abnormal risk of injury will also arise where the client has been injured as a result of an act of violence (S6(1)(a)).

Note also that, where the Delegate decides that voluntary submission to an abnormal risk of injury has occurred, the investigation will conclude that the client's injury did not 'arise out of, or in the course of, employment'. In effect, the answer to this question is applied not only to S6(1) but also to the definition of 'injury' in S4(1).

'Abnormal' is defined in the following terms by the Concise Oxford Dictionary:

abnormal 1. Deviating from what is normal or usual; exceptional

An abnormal risk is a risk to which the employee would not usually be exposed, or the risk arising from an activity which is inherently dangerous.

'Voluntary' is defined in the Concise Oxford Dictionary as:

voluntary 1. done, acting, or able to act of one's own free will; not constrained or compulsory, intentional...

In the context of S6(3), it also connotes that the member was aware of the 'abnormal risk' and undertook the activity anyway. In Taylor v Stapely (1954) the High Court considered that the employee may not have foreseen the extent of the risk and therefore his submission to it could not have been voluntary. The fact that an employee has put himself or herself in a position of exposure to abnormal risk of injury could not be considered voluntary if the employee could not, or actually did not, foresee the extent of the risk.

This is well illustrated by the decision of the Administrative Appeals Tribunal in Re Grime and Telstra Corporation Limited (1994) where an employee drove a car to work in the morning with a blood alcohol level of 0.136%, after drinking approximately 16 light beers the night before. The Tribunal found that he was not aware that he was still substantially affected by alcohol, and that therefore it could not be said that he voluntarily submitted to an abnormal risk of injury. The Tribunal considered 'that 'voluntarily, for the purpose of S6(3), requires something more than an act being done without compulsion, and that it does require the free consent of the injured employee, this necessarily encompassing that the employee fully appreciate the risk which is being undertaken'.

Nevertheless, it was, however, agreed between the parties that the employee had been guilty of 'serious and wilful misconduct' in terms of S4(13).

'Unreasonable' and 'reasonable' are defined in the Concise Oxford Dictionary:

unreasonable 1. going beyond the limits of what is reasonable or equitable. 2. Not guided by or listening to reason.

reasonable 1. having sound judgement; moderate; ready to listen to reason 2. In accordance with reason; not absurd. .

Whether a member was unreasonable in his or her submission to the abnormal risk of injury must be decided on the facts of the particular case. Issues which would need to be considered in that context would be the member's capabilities and knowledge about the activity, precautions taken, etc.

If a member's ADF duties include exposure to activities which bear an inherent risk
(e.g. diving or parachuting), submission to that risk would always be considered 'reasonable' unless the member was in breach of discipline in undertaking the activity. Some Defence Force members may necessarily be required to undertake activities which have a high degree of inherent risk. While such activities may involve an abnormal risk, it is important to note that the exclusion also requires a 'voluntary and unreasonable' submission to the abnormal risk. As discussed below, actions in the course of ADF duty would not be 'unreasonable' in such circumstances, and thus the exclusion would not apply.

In relation to sporting activities, the nature of the member's ordinary duties, any pre-existing injuries, the use of suitable safety equipment (e.g. gym mats) and the availability of appropriate supervision and training could be relevant factors.

Note also in this regard, the comments made at part 19.5 of this Handbook in relation to ADF sponsored 'adventurous training' and other approved off-duty activities.

It is clear that where an employee and his friends indulged in motor cycle racing through the staff car park during his lunch hour, any injury received during this inherently risky behaviour would be excluded by S6(3), even if the employee claimed not to be aware of excessive danger.