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:
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:
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:
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:
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:
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 [11]
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!
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[11] https://clik.dva.gov.au/military-compensation-srca-manuals-and-resources-library/liability-handbook/ch-26-serious-and-wilful-misconduct/261-serious-and-wilful-misconduct-srca