Martin v Comcare

THE LEGISLATIVE FRAMEWORK 67 Section 14 is the central provision in the SRC Act. It provides Comcare's liability to pay workers' compensation in accordance with the Act in respect of "injury" within the meaning of the Act, where that injury results in death, incapacity for work or impairment. It relevantly provides: 14 Compensation for injuries (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. …. 68 Section 5A relevantly provides: 5A Definition of injury (1) In this Act: injury means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment. (2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following: … (f) 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. (Emphasis added.) The emphasised words operate to exclude from the definition of "injury" an injury, disease or aggravation that would otherwise meet the definition. 69 It is common ground that Ms Martin's adjustment disorder is a disease pursuant to s 5A(1). Section 5B provides: 5B Definition of disease (1) In this Act: disease means: (a) an ailment suffered by an employee; or (b) an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee. 70 There are five limbs to the enquiry as to whether a compensable injury, disease or aggravation suffered by an employee which is contributed to, to a significant degree, by the employee's employment is caught by the exclusion in s 5A, namely: (a) whether the relevant action is administrative action; (b) whether the administrative action was taken in respect of the employee's employment: see Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21; (2012) 199 FCR 463 ("Reeve") at [33] (Gray J) and [60] (Rares and Tracey JJ); (c) whether the disease, injury or aggravation is suffered as a result of the administrative action; (d) whether the action is reasonable administrative action; and (e) whether the reasonable administrative action is taken in a reasonable manner. There is no dispute in the appeal in relation to the first, second and fourth limbs of the enquiry. The appeal concerns only the third and the fifth limbs.

THE FACTS 71 The following account of the facts is derived from the Tribunal's reasons (Martin v Comcare [2014] AATA 553, (2014) 64 AAR 224). 72 Ms Martin worked at the ABC station in Renmark, South Australia, from January 2010 until 20 March 2012. From January 2010 until August 2011 she worked as a radio producer under the direct supervision of Mr Mellett, who was also the presenter of a local ABC breakfast programme. 73 Ms Martin alleged 11 incidents of bullying and harassment by Mr Mellett and, on one occasion, by another employee. Ms Martin's account was corroborated to an extent by another employee at the Renmark station, Susan Rooney-Harding. She testified that Mr Mellett's behaviour towards Ms Martin was very different to his behaviour towards other members of staff, and that Mr Mellett ignored Ms Martin's greetings, excluded her from conversations and on several occasions swore at her in editorial meetings. 74 Ms Rooney-Harding lodged a formal complaint with the ABC about her own treatment at the hands of Mr Mellett and another employee. She left the ABC because, in her opinion, her position had become untenable after two years of "constant bullying and harassment". Her complaint was investigated by the ABC and found to be not proven, but in her view it was not properly investigated. 75 On 27 May 2011, 2 June 2011, 16 June 2011 and 29 July 2011, Ms Martin sought counselling by counsellors at Davidson Trahire, a counselling service. The case management notes of the counsellors were produced to the Tribunal. 76 The notes record that Ms Martin said that the work environment at the Renmark station was "quite toxic", that there was "bullying" and "manipulation", and that it had "a passive /aggressive culture". The notes also record Ms Martin as saying she felt scared at the station and that she felt like a better person when she was away from it. The notes state that the counsellors discussed "interventions" with Ms Martin including self-care and strategies to deal with the stress she said she was experiencing at the workplace. A case management note on 27 May 2011 recorded Ms Martin's symptoms as relating to "appetite, sleep, energy levels, judgement and mood" and noted: Lose confidence; anxious; put on a lot of weight; eat through stress; goes to the gym; sleeps ok unless the bully goes on leave and when they come back doesn't sleep; previously physically ill due to bullying; paranoia. 77 On 25 June 2011, Ms Martin consulted a general practitioner, Dr Kulatunga, about her psychological condition. His consultation notes were produced to the Tribunal. They record that Ms Martin reported: sleep problems, disturbed and early wakening, in the morning she feels nauseated and some time[s] diarrhoea chest tightness on and off. Under the heading "management", Dr Kulatunga wrote: Seems she is under stress, explained 2 options Change environment or change the way she thinks Talk to a friend Advised regarding re-enforcing positive lifestyle modifications (exercise, healthy diet and maintaining a range of interests). 78 The case management notes from the counselling service for 29 July 2011 record Ms Martin as saying that "things weren't great but have improved since [Ms Martin] made [her appointment]", that she had decided that she "needs to be happy", and that "as long as there is hope [she] can cope". The notes record her as saying that she "will hold onto the remaining counselling sessions until she feels she needs them and will call at this point". 79 In August 2011 Ms Martin was appointed temporarily to the role of acting cross media reporter. While she continued to work out of the Renmark station she came under the supervision of a different supervisor, Carol Raabus. The Tribunal found that Ms Martin's psychological condition improved over the period from August 2011 until March 2012 but that it did not resolve. 80 There was still some interaction between Ms Martin and Mr Mellett between August 2011 and March 2011 as they worked in the same station. She claimed that his bullying continued. The Tribunal found that Mr Mellett's contemporaneous notes showed that he held Ms Martin in "very low regard" through this period including holding the view that she knowingly and repeatedly made allegations against another employee that she knew to be false, that her conduct was malicious, and that she was guilty of a breach of workplace behaviour standards and potentially misconduct. 81 In early 2012 Ms Martin sought appointment to the permanent cross media reporter position, which would have been a promotion. The Tribunal found that she did so primarily in order to escape the claimed bullying and harassment. 82 A three person selection panel, which included Mr Mellett and Ms Raabus, was convened to make a recommendation in relation to the appointment. The Tribunal extracted that part of the ABC Recruitment and Selection Guidelines ("the Guidelines") which deals with the "Merit Principle". It provides that the best person for a vacancy should be selected "without patronage, favouritism or discrimination on any of the recognised grounds of unlawful discrimination" and "through the application of a selection process that is "fair and objective". The Tribunal also extracted part of the Guidelines dealing with the composition of the selection panel, which provides that: If a Selection Panel member…believes their personal relationship with an applicant could affect an applicant's selection prospects, they should raise this with the convenor, or a People & Learning representative, and withdraw from the Selection Panel. All reasonable steps should be taken to ensure that the Selection Panel does not include persons who could reasonably be perceived to have a conflict of interest in the selection decision (refer to the ABC Conflict of Interest Policy). It is the responsibility of all panel members to raise any concerns they may have regarding a potential conflict of interest of other panel members. 83 Mr Mellett did not advise the other members of the selection panel of his strong adverse views about Ms Martin and he did not alert Ms Martin to the detail of those views in order that she could have an opportunity to respond. While the other members of the panel thought the recruitment process was unremarkable, each believed that Mr Mellett should have disclosed his views about Ms Martin to them. Both of the other panel members gave evidence that it was probably inappropriate for a person with strong negative views of the competence or integrity of a particular candidate to be a member of a panel. 84 Ms Martin gave unchallenged evidence that she was extremely anxious during the interview, knowing Mr Mellett's poor opinion of her abilities as a journalist. She said that she felt tense in the interview as a result and felt that the interview did not go well. Ms Raabus said that she and the other members of the panel were of the opinion that Ms Martin did not answer questions that required a detailed understanding of the issues affecting the local audience as well as could be expected from someone with experience in the region, and did not sufficiently address two other selection criteria. 85 There was, however, little difference between the scores that each member of the selection panel gave Ms Martin, and Mr Mellett in fact awarded her slightly higher scores on some criteria than the other panel members. The selection panel recommended that Ms Martin be offered the position if the successful candidate did not accept the offer. 86 However, the decision not to appoint Ms Martin was not made by the panel. Its role was only to make a recommendation. 87 On 16 March 2012 Ms Raabus telephoned Ms Martin to advise her that she had been unsuccessful in her application for appointment. Both of them gave evidence about Ms Martin's reactions in that conversation. Reading the decision as a whole, the Tribunal did more than merely recount the unchallenged evidence of Ms Raabus and Ms Martin regarding Ms Martin's reactions in that telephone conversation. I consider that the Tribunal implicitly accepted that evidence. 88 Ms Raabus testified that: (a) while Ms Martin was disappointed that she was not to be promoted, she appeared to take that news in her stride; and (b) it was not until the conversation progressed, and Ms Raabus raised the issue of Ms Martin returning to work in her substantive position as a producer under Mr Mellett's supervision, that Ms Martin became very upset and emotional, and told Ms Raabus that she had problems with Mr Mellett and did not want to return to work under his supervision. 89 Ms Martin agreed with Ms Raabus' account and said that it was not until she realised she would be returning to work with Mr Mellett that she became "devastated", "broke down uncontrollably", could not stop crying and became overwhelmed by the hopelessness of her situation. 90 Immediately after the telephone conversation, Ms Martin went home and suffered what she described as "a breakdown". The following day she consulted her GP who diagnosed her as suffering from a psychiatric illness, referred her to a psychologist and certified her as unfit for work. 91 The parties each engaged a consultant psychiatrist to provide an expert medical opinion as to the cause of Ms Martin's adjustment disorder. Somewhat unusually in a workers' compensation case, the medical experts gave broadly the same evidence. The Tribunal accepted their evidence that: (a) Ms Martin was suffering an adjustment disorder when she saw Dr Kulatunga in July 2011 (at [34] and [39]); (b) Ms Martin was still suffering from the adjustment disorder during the period she was the acting cross media reporter from August 2011 until 16 March 2012 and that she "probably 'limped along' mentally and physically during this period" (at [35], [36] and 42]); and (c) what caused Ms Martin to "decompensate" on 16 March 2012 was the realisation that she would be required to return to work under the direct supervision of Mr Mellett, her belief that the alleged bullying would continue, and her view that her position had become hopeless (at [56] and [58]).

THE FIRST ISSUE: WHETHER THE ADJUSTMENT DISORDER WAS "SUFFERED AS A RESULT OF" THE RELEVANT ADMINISTRATIVE ACTION

The Tribunal's approach 92 As I have said, the Tribunal made the following findings: (a) it rejected Comcare's contention that Ms Martin's claim that the primary reason she applied for the role of cross media reporter was to remove herself from the supervision of Mr Mellett was a recent invention, designed to avoid the operation of s 5A of the SRC Act. It found that there was "powerful evidence to corroborate Ms Martin's claim that her belief she had been mistreated by Mr Mellett pre-dated the decision not to promote her to the position of cross media reporter" (at [57]); (b) it accepted Ms Martin's claim "that the cross media reporter position was not her preferred option, and the primary reason she applied for that position was to remove herself from Mr Mellett's direct supervision" (at [58]); (c) it agreed with the expert psychiatric evidence "that what caused her to 'decompensate' was the realisation that the decision meant she would be returning to Mr Mellett's supervision, and her belief that the alleged bullying would continue" (at [58]); and (d) it found that Ms Martin's reaction to the relevant decision was primarily attributable to her dread of returning to work under Mr Mellett and not disappointment with the decision not to promote her (at [61]). 93 Had the Tribunal's deliberations stopped at that point, in my view, there could be no real question that it decided that Ms Martin did not suffer the adjustment disorder "as a result of" the failure of her application for promotion, but because she had been informed that she would be returning to a workplace where she feared being bullied and harassed. However, at [60] to [62] the Tribunal proceeded to, in my view erroneously, construe and apply the exclusion in s 5A in the following way. 94 The Tribunal said: [60] A number of consequences flowed from Ms Martin's failure to obtain the promotion to the position of cross media producer. These included: • Ms Martin would be required to return to her substantive position and work under the direct supervision of Mr Mellett; and • Ms Martin would be denied a small pay increase and the opportunity to further develop her skills in cross media production. [61] The question posed by s 5A(1) is whether the claimed ailment was suffered as a result of the nominated action, in this case the failure to obtain the promotion. It matters not which of the anticipated consequences of the offending decision was most likely to have troubled Ms Martin. That her reaction to the offending decision was primarily attributable to her dread of returning to work under Mr Mellett and not her disappointment with lack of career advancement, is irrelevant. In her mind the former was a direct and foreseeable consequence of the decision. [62] I am satisfied on balance that one of the operative causes of Mr Martin's adjustment disorder was her failure to obtain the position of cross media reporter. I find that Ms Martin's condition was "a result of" that action. (Emphasis added.) By this reasoning process the Tribunal decided that Ms Martin's adjustment disorder was as a result of the decision not to promote her, and her injury therefore fell within the exclusion. 95 The Tribunal then moved to deal with the second issue in the appeal, namely whether the relevant administrative action was taken in a reasonable manner. I deal with that issue later.

The primary judge's approach to the first issue 96 Ms Martin filed a Notice of Contention that sought to have the Tribunal's decision affirmed on the basis that, on the proper construction of s 5A(1) and on the facts found by the Tribunal, she did not suffer the adjustment disorder as a result of the decision not to promote her. 97 The primary judge dealt with the Notice of Contention at [101] to [109] of the judgment. His Honour recounted the Tribunal findings and then said (at [106]-[109]): [106] In my view, the Tribunal's approach did not involve any misconstruction of s 5A(1) as submitted by Ms Martin. As is evident from [57]-[62] of the Tribunal's reasons for decision, the Tribunal considered that Ms Martin's anxiety at the prospect of returning to work under Mr Mellett's supervision arose from the decision not to promote her to the permanent position of cross media reporter. Indeed, the Tribunal expressly found at [61] that, in Ms Martin's mind, the prospect of returning to work under Mr Mellett's supervision was "a direct and foreseeable consequence" of the promotion decision. That was a finding of fact, which was plainly open to be made on the evidence. [107] In my opinion, such reasoning did not involve any misconstruction of s 5A(1). It may be accepted that, consistently with Hart (at [26]), matters concerned with the process of evaluating a promotion application may themselves contribute to an injury and give rise to liability under s 14 of the SRC Act, as opposed to the promotion decision itself. That is a valid distinction to be drawn under both the SRC Act as in force and applied in Hart, as well as the SRC Act as in force at the time of the Tribunal's decision here. However, the distinction which was drawn in Hart reflected a different fact situation to that here. In Hart, the Tribunal had found that there were two concurrent causes of the injury: one was the failure to obtain promotion which was excluded under the relevant provision. The other related to events connected with the process of promotion which was not excluded. The Full Court's remarks in [26] need to be read in that context. But that passage from Hart provides no support for s 5A(1) and the particular relevant exclusion in s 5A(2)(f) being construed and applied so as to deny the exclusion from liability having any operation where Ms Martin's adjustment disorder was the result of indirect and unintended consequences of the decision not to promote her, as opposed to the promotion decision itself. [108] The text and context of s 5A, including para (2)(f) thereof, do not support such a construction. I accept Comcare's submission that acceptance of Ms Martin's contention would require additional words to be read into paragraph (f). In my view, there is no warrant for that approach. The remedial or beneficial nature of the legislation provides an insufficient basis for effectively rewriting the relevant exclusion in the manner sought by Ms Martin. As Mason, Brennan, Deane and Dawson JJ observed in Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638: "the rule that remedial provisions are to be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal must, as has been said, be restrained within the confines of 'the actual language employed' and what is 'fairly open' on the words used". [109] Furthermore, and importantly by way of emphasis, the distinction which Ms Martin seeks to draw between direct [sic]or unintended consequences of the decision not to promote her, and the decision itself, sits uncomfortably with the Tribunal's findings of fact which indicate that the Tribunal saw these matters as being inextricably linked. The Tribunal considered that there were concurrent operative causes of Ms Martin's adjustment disorder. The first related to the alleged bullying and harassment, noting that the Tribunal found at [42] of its reasons for decision that "Ms Martin was probably suffering from an adjustment disorder during the period she acted in the role of cross media reporter". The second related to her reaction at being told the outcome of the promotion decision and the dread she felt at the prospect of returning to work under Mr Mellett. The two matters were regarded by the Tribunal as linked, as is reflected in the express finding in [61] that, in Ms Martin's mind, the dread of that prospect "was a direct and foreseeable consequence" of the promotion decision. In those circumstances the Tribunal was correct to proceed and consider whether or not the relevant exclusion applied. 98 His Honour dismissed the Notice of Contention.

Consideration regarding the first issue 99 It is worth noting that a decision that an injury, disease or aggravation is suffered as a result of administrative action has a significant consequence in terms of rights to compensation under the SRC Act. The broader the construction of the exclusion, the more is removed from the field of compensation. This is especially so in light of the principle taken to have been established in Hart v Comcare [2005] FCAFC 16; (2005) 87 ALD 34 ("Hart") (at [21]-[23]) that, however many separate causes of an injury may have arisen out of or in the course of an employee's employment, if any one of those causes falls within the exclusion the employee is wholly disentitled to compensation in respect of that injury (see also Reeve at [54]-[56] and [24]). 100 Ms Martin submitted that the Tribunal erred in its approach to whether her adjustment disorder was suffered as a result of the failure of her application for promotion and that the primary judge erred in dismissing the Notice of Contention. She contended that on the correct construction of s 5A(1) of the SRC Act, and on the factual findings made by the Tribunal, her adjustment disorder was not suffered as a result of the failure to be promoted. 101 She argued that her being required to return to her substantive position was an "indirect or unintended" consequence of the decision not to promote her, and that the exclusion should be construed so that it does not relate to indirect or unintended consequences of an administrative decision. On Ms Martin's argument, construing the exclusion in that way would be contrary to the beneficial nature of the SRC Act. 102 Comcare contended that there is no warrant for reading down the exclusion so that it does not include "indirect or unintended" consequences. It noted that the definition of "injury" in s 5A(1) was introduced by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth). The previous definition of "injury" contained an exclusion in similar, but more limited, terms to the present exclusion. Comcare contended, and I accept, that the purpose of the amendment was to broaden the operation of the exclusion in s 5A. 103 As Rares and Tracey JJ said in Reeve at [72], and I respectfully agree: …the purpose of s 5A was to broaden the exclusion of matters from the previous definition of "injury" so that an employer would not be unduly inhibited in taking reasonable administrative action in respect of an employee's employment. The Parliament sought to ensure that an employer would be freer to deal with an employee, by taking disciplinary action or deciding to deal with that employee as an individual in respect of his or her employment, than had been the case under what it considered were narrow judicial interpretations of the old exclusion in s 4(1). There is, however, nothing in the legislative history or extrinsic materials which provides a clear statement of intention as to the limits of the breadth of the exclusion: Reeve at [25] (Gray J). 104 Comcare argued that the consequences of an employee's failure to obtain a promotion (such as being sent back to the employee's substantive position) are "necessarily bound up" with the decision not to promote the person. It contended that Ms Martin's adjustment disorder was inextricably linked to the decision not to appoint her to the position of cross media reporter, and that her concern about returning to work under Mr Mellett was (as the Tribunal found) "a direct and foreseeable consequence of the decision" not to promote her. 105 I do not accept Ms Martin's contention that the exclusion should be read so that it does not include "indirect or unintended" consequences of administrative action. In my view that construction seeks to put an unjustified gloss on the statutory test as to whether the relevant injury, disease or aggravation is suffered as a result of the administrative action. The enquiry is one of causation and it does not include a requirement that the condition be a direct or intended result of such action. I respectfully agree with the primary judge that acceptance of this contention would require additional words to be read into s 5A(2)(f) and that there is no proper basis to do so. While the SRC Act is remedial and it should be construed beneficially, that approach must be kept within the confines of the actual language employed: Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638 (Mason, Brennan, Deane and Dawson JJ). 106 Having said this, I consider the Tribunal erred in its construction of the exclusion, and in my respectful view the learned primary judge erred in dismissing the Notice of Contention. 107 First, the task of construing s 5A must begin with a consideration of the text itself as those words are the surest guide to the intention of the legislature. The expression "suffered as a result of" requires that, for the exclusion to apply, a causal relationship must be established between the relevant administrative action and the claimed injury, disease or aggravation. 108 Second, it is important to keep in mind that in cases such as this causation is a matter of common sense: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 (Mason CJ); Fitzgerald v Penn (1954) 91 CLR 268 at 277 (Dixon CJ, Fullagar and Kitto JJ). While those cases dealt with causation in the context of negligence claims the test for causation is the same in a workers' compensation context. In Migge v Wormald Bros Industries Limited [1972] 2 NSWLR 29 at 44 Mason JA (in dissent) explained: …causation in tort does not differ from causation under the workers' compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation. His Honour's view was endorsed by the High Court on appeal: Migge v Wormald Bros Industries Limited (1973) 47 ALJR 236. 109 As Rares and Tracey JJ said in Reeve at [65]: The assessment of whether a disease, injury or aggravation has been suffered as a result of reasonable administrative action within the meaning of s 5A(1) involves the formation of a judgment as to causation. This requires a tribunal of fact to ascertain whether the disease, injury or aggravation is the, or a, common sense, consequence of what is identified as reasonable administrative action by the employer in respect of the employee's employment. 110 The Tribunal's task was to decide, by the application of common sense to the facts as it found them, whether Ms Martin's adjustment disorder was suffered as a result of the failure to promote her to the permanent cross media reporter position. 111 Third, it is clear from the Tribunal's reasons that it did not accept Comcare's contention that Ms Martin's psychological injury arose from disappointment, distress or resentment about not being appointed to the position she sought. It concluded that she became incapacitated by the adjustment disorder when she was informed that she would be returning to work under the supervision of Mr Mellett, where she feared a continuation of the claimed bullying. The Tribunal: (a) found that Ms Martin was already suffering an adjustment disorder prior to the 16 March 2012 telephone conversation. It accepted that Ms Martin was probably suffering an adjustment disorder when she saw Dr Kulatunga in July 2011 (at [39]), that she continued to suffer the adjustment disorder throughout the period from August 2011 to March 2012 and was just "limping along mentally and physically during this period" (at [36] and [42]); (b) found there was powerful evidence to corroborate Ms Martin's claim that her belief she had been mistreated by Mr Mellett predated the decision not to appoint her to that position (at [57]); (c) accepted Ms Raabus' and Ms Martin's evidence about Ms Martin's reactions in their 16 March 2012 telephone conversation (at [53]), including: (i) Ms Raabus' account that when Ms Martin was told that she had been unsuccessful in obtaining the position, while she was disappointed she initially appeared to take that news in her stride; (ii) Ms Raabus' account that it was not until later in the conversation, when Ms Martin was told that she would be returning to work under the supervision of Mr Mellett, that she became very upset and emotional, said she had problems with Mr Mellett and said that she did not want to return to work under his management; and (iii) Ms Martin's account that it was not until she realised she be returning to work with Mr Mellett that she felt devastated and overwhelmed by hopelessness; (d) accepted (at [56] and [58]) the expert psychiatrists' evidence that: (i) the history they had been given by Ms Martin did not suggest that she had any particular interest in the cross media reporter position or a "yen for career advancement" but rather saw the position as a way to remove herself from Mr Mellett's supervision; (ii) the deterioration in Ms Martin's condition was caused by her realisation that she would be required to return to work under Mr Mellett's supervision and, as she saw it, her position had become hopeless; and (iii) her "yen" for the position was so minor its contribution to her adjustment disorder was immaterial. 112 Most importantly, the Tribunal made a finding of causation (at [58]) which is, in my view, critical. It found that what caused Ms Martin to "decompensate" on 16 March 2012 was the realisation that she would be required to return to her substantive position under the direct supervision of Mr Mellett and her belief that the claimed bullying would continue. 113 This causation finding is entirely congruent with the factual findings the Tribunal made on the lay and medical evidence relevant to causation. It is at odds with the Tribunal's later (in my view erroneous) conclusion (at [62]) that one of the causes of Ms Martin's adjustment disorder was her failure to obtain the position of cross media reporter and that she suffered that condition as a result of that administrative action. 114 Fourth, I do not accept Comcare's contention that, as a matter of construction of s 5A, a consequence of an employee's failure to obtain a promotion (such as being informed about being sent back to his or her substantive position) is necessarily bound up with the decision not to promote the person. For this argument Comcare relied on obiter remarks of the Full Court in Hart at [26] (Branson, Conti and Allsop JJ) where the Court said: As to the way the primary judge approached the matter, we are of the view that as a matter of construction of the definition the distinction drawn by the Tribunal was not necessarily inappropriate. The events which surround a promotion process may, conceivably, be such as to cause serious injury, mental or physical. Injury as a result thereof could be quite distinct from any injury suffered as a result of a failure to obtain a promotion. However, equally, distress at or with the process of assessing the candidates for promotion may, as a matter of fact, be suffered as a result of failure to obtain the promotion. It is possible to envisage circumstances where someone who would have had no, or limited, criticism of the events surrounding a promotion process had he or she achieved the promotion, becomes aggrieved by those processes to the extent of suffering psychological harm following a failure to obtain the promotion. In such circumstances, there may be factual issues, including medical issues, as to what was the role of the events in the procedure and of the failure to obtain the promotion. However, we do not think that it can be concluded, as a matter of construction of the definition, that events concerned with the process of evaluation of the promotion application are necessarily bound up with the decision as to the promotion and any failure to obtain the promotion. (Emphasis added.) 115 I consider Comcare's reliance on these remarks is misplaced. In Hart the applicant was unsuccessful in various promotion attempts and her compensation claim centred on events connected with procedures employed in the process leading up to the decisions. The Tribunal identified two concurrent causes for Ms Hart's psychological condition. The first was incidents associated with the application, interview and promotion process which contributed materially to Ms Hart's disease but which, in the Tribunal's view, did not fall within the exclusion in the equivalent provision to s 5A(1). The second was the failure to obtain promotion which did fall within the exclusion. 116 The Tribunal found that because some causes of Ms Hart's condition were excluded she should succeed in her claim. On appeal Whitlam J held that the distinction between a failure to obtain a promotion occasioning disappointment and distress and an application, promotion and interview process causing upset and emotional disturbance was spurious: Comcare v Hart [2004] FCA 1144 at [11]. 117 While the Full Court found that the Tribunal erred in excluding those causes which were not a result of the failure by the employee to obtain a promotion, the Court did not accept Whitlam J's view. As the emphasised passage in the extract above shows, the Full Court considered that, as a matter of construction, events concerned with a promotion application are not necessarily bound up with the decision as to the promotion and any failure to obtain the promotion. Whether they are or not will depend upon factual issues, including medical issues, as to the role of the events in the promotion procedure and the failure to obtain the promotion. 118 In the present case, the Tribunal's findings on the lay and medical evidence strongly indicate that it concluded that Ms Martin's adjustment disorder was not inextricably bound up with the decision not to appoint her. Amongst other findings, the Tribunal accepted the expert psychiatric evidence that separated the effects of the failure to promote Ms Martin from the effects of her realisation that she would be returned to a workplace where she feared bullying. 119 Comcare contended that the close temporal connection between the decision not to promote Ms Martin and her severe psychological reaction showed that the two matters were necessarily bound up. I do not agree. The same close temporal connection existed between her being informed that she would be returning to Mr Mellett's supervision and her psychological reaction. Whether either (or both) of those events was the, or a, cause of the adjustment disorder was to be determined on the evidence, including the expert medical evidence. The pertinent expert evidence from both sides, accepted by the Tribunal, was the same and it went against Comcare's contention. 120 Fifth, I consider the Tribunal's conclusion, seen in light of its factual findings at [42], [53], [56], [57] and [58], shows that it misconstrued the meaning of the expression "suffered as a result of" in s 5A(1) and it took an erroneous approach to causation. This can be seen in the Tribunal's statements: (a) (at [61]) that the fact that Ms Martin's "reaction to the offending decision was primarily attributable to her dread of returning to work under Mr Mellett and not her disappointment with lack of career advancement, is irrelevant". Contrary to the Tribunal's statement, that Ms Martin's psychological reaction was primarily attributable to her dread in relation to Mr Mellett was plainly relevant, perhaps central, in a proper approach to deciding whether her psychological injury was suffered as a result of the failure to promote her; (b) (at [60]) that one of the consequences of Ms Martin's failure to obtain the promotion was that she would be denied a small pay increase and the opportunity to further develop her skills in cross media production. Comcare was unable to point to any foundation in the evidence for the proposition that Ms Martin's adjustment disorder was caused by the denial of a small pay increase and/or the opportunity to improve her cross media production skills. There is no basis for treating that particular consequence as causative of the claimed disease. It is a statement about something that followed from the decision to refuse her promotion but which, on the evidence, did not cause her psychological condition. The Tribunal's error was to confuse consequence with causation, when they may not be coincident in this statutory context; and (c) (at [61]) that, in Ms Martin's mind, the prospect of returning to work under Mr Mellett was "a direct and foreseeable consequence" of the decision not to appoint her to the position she sought. As Mason CJ noted in March v Stramare at 510 (citing Chapman v Hearse (1961) 106 CLR 112 at 122) "the term 'reasonably foreseeable' is not in itself a test of causation". Mason CJ rejected reasonable foresight as a test of causation (at 515) noting that the cause of a particular occurrence must be determined by applying common sense to the facts of each particular case. It may also be noted that this finding is inconsistent with the evidence, accepted by the Tribunal, that Ms Martin took the news that she would not be promoted "in her stride". There is nothing in the decision to indicate that there was evidence before the Tribunal to support a finding that Ms Martin saw it as a "direct and foreseeable consequence" of the failure to promote her that she would be returned to her former position. 121 I consider the Tribunal wrongly construed the expression "suffered as a result of" as permitting it to treat as causative an event which was no more than chronologically precedent to the event which was - on the lay and expert evidence accepted by the Tribunal - the cause of the adjustment disorder. The question of whether she suffered the adjustment disorder as a result of the failure to promote her was not a matter to be determined by using metaphysical concepts of cause and effect and instead required a common sense approach to the facts as it had found them. 122 Sixth, although this is not central to my view (and keeping in mind that it was not argued before the Tribunal) it was wrong for the Tribunal to approach the issue of causation on the assumption that Ms Martin being returned to her substantive position was an inevitable consequence of the failure to promote her. It is likely that there was an intervening administrative action (such as making the further decision that she was to revert to working under the supervision of Mr Mellett, informing her of that decision or maintaining the decision to return Ms Martin to Mr Mellett's supervision when Ms Raabus was made aware of Ms Martin's concerns regarding him). It is unlikely with a large employer such as the ABC that, upon the failure of an application for promotion, it is inevitable that an employee will be forced to return to a position where he or she claimed to be bullied. 123 Logically, any decision to return Ms Martin to her substantive position was subsequent to the decision not to promote her, and on the medical evidence and the Tribunal's findings it was the later decision which was the cause of the adjustment disorder. Before us, Comcare appeared to accept that if Ms Martin was not to be sent back to a workplace where she feared bullying and instead, for example, she was left temporarily in the acting position or appointed to another position then the adjustment disorder was unlikely to have resulted. 124 Seventh, Comcare submitted that to allow the appeal on this issue would wreak havoc on the ability of the Commonwealth to make promotion decisions. It argued that, in a practical way, it was impossible for Commonwealth employers to know what consequences might flow from administrative decisions refusing promotion. This submission was a serious overstatement. The exclusion in s 5A plainly operates to exclude compensation where the cause of an employee's psychological injury is disappointment, distress or resentment regarding a decision to refuse promotion. Nothing I have said undercuts that proposition. The question whether injury is suffered as a result of a failure to be promoted is one of causation, to be determined on the facts of each case. In the present case the Tribunal found that the ABC's failure to promote Ms Martin was "immaterial" in causing her condition. 125 The Tribunal's error of construction and its erroneous approach to causation led it to subvert its earlier factual findings as to the cause of Ms Martin's adjustment disorder. It did not apply common sense to the facts, as found by it, that the cause of Ms Martin's condition was not the failure to promote her. In my respectful view the learned primary judge erred in upholding the Tribunal's decision on this issue. 126 Finally, I note in passing that Comcare relied on parts of the Tribunal's reasons to argue the Tribunal did not find that the only cause of Ms Martin's adjustment disorder was her realisation that she would be required to return to her substantive position and her belief that the claimed bullying would continue. It contended that these passages indicated that the Tribunal decided that there was more than one operative cause of Ms Martin suffering the adjustment disorder, thereby attracting the operation of the principle stated in Hart at [21]-[23]. Comcare pointed, amongst others, to the Tribunal's statements that: (a) the primary reason why Ms Martin applied for the cross media reporter position was to remove herself from Mr Mellett's direct supervision (at [58]). However, the Tribunal's use of "primary" (at [58]) relates to the reason why Ms Martin applied for the permanent position rather than to the reason that she suffered her psychological condition. This statement does not assist Comcare; and (b) Ms Martin's reaction to the offending decision was primarily attributable to her dread of returning to work under Mr Mellett and not her disappointment with lack of career advancement (at [61]). However, the Tribunal expressly found (at [56]) that Ms Martin's desire for the cross media reporter position was "so minor its contribution to [her] adjustment disorder was immaterial". Seen in that light the statement at [61] provides little support for Comcare's contention.

Remittal to the Tribunal 127 Given the Tribunal's findings of fact, a question arises as to whether the Court should make a finding under s 44(7) of the AAT Act, to the effect that Ms Martin's adjustment disorder was not suffered as a result of the administrative decision not to appoint her to the cross media reporter position. 128 While in my view the evidence is clear, in all the circumstances it is best to remit the matter to the Tribunal to be reheard and determined according to law. I say this largely because the Tribunal's reasons contain some contradictory statements and Comcare argued that more than one conclusion is open: Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24] and [27] (Gleeson CJ, Gummow and Callinan JJ). It is relevant too that Ms Martin did not seek such a finding of fact in the Notice of Appeal and Comcare had no notice that such a course might be taken. 129 While the matter comes close to a case where there may only be one answer, it may be that the Tribunal, properly instructed about the operation of the exclusion in s 5A(1) and taking a proper approach to causation, may reach a different view on important aspects of the evidence. It is best for the Tribunal rather than this Court, under s 44(7) of the AAT Act, to determine those factual questions: see May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; (2015) 322 ALR 330 at [233] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). 130 In my view there is no imperative for this matter to be determined by a differently constituted Tribunal, and there are likely to be some efficiencies in it being heard by the same Senior Member. However, I prefer to leave the constitution of the Tribunal on remittal to the President of the Tribunal, for his direction pursuant to s 20B of the AAT Act. I do so for similar reasons to those expressed in Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757; (2011) 282 ALR 24 at [130] (Robertson J) and by reference to the considerations referred to in Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497 at [29]-[34] (Downes J) and [90]-[95] (Tracey and Flick JJ).

THE SECOND ISSUE - WHETHER THE ADMINISTRATIVE ACTION WAS TAKEN IN A REASONABLE MANNER 131 The second issue is whether the administrative action surrounding the decision not to appoint Ms Martin to the cross media reporter position was taken in a reasonable manner. 132 Ms Martin contended that the selection process was not undertaken in a reasonable manner. She relied on the fact that Mr Mellett was a member of the selection panel when he held strong adverse views about her, that she was extremely anxious in her interview by the panel because of Mr Mellett's presence, that he did not inform the other members of the panel of those views, and that the other members of the panel thought that he should have done so. She argued that the selection process was inconsistent with the Guidelines and that the decision not to appoint her was therefore not taken in a reasonable manner. 133 Comcare argued that that there was no evidence that Mr Mellett did not bring an open mind to the selection process, that he quarantined his views from the other panel members, that all of the panel members gave similar scores to Ms Martin, that he gave Ms Martin a higher score on some criteria than the other members of the panel, and that the panel did not make the appointment decision as its role was only to make a recommendation. It contended that the ABC complied with the Guidelines. In the alternative it submitted that non-compliance with the Guidelines did not mean that the ABC had failed to take administrative action in a reasonable manner. 134 In Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47-48 Lander J said, and I respectfully agree: Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer. 135 It is common ground that the selection process was implemented in a context where the ABC had set Guidelines for the conduct of such procedures. However, while a consideration of the Guidelines is relevant to understanding whether action was taken in a reasonable manner, it would have been wrong for the Tribunal to be distracted by the Guidelines from the real question in s 5A, namely whether the action was reasonable administrative action taken in a reasonable manner: see Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 at [77] (Robertson J). In any event, the Tribunal did not plainly decide whether the administrative action complied with the Guidelines or not. 136 While I have some concerns as to whether the selection process was undertaken in a reasonable manner, in my view the Tribunal erroneously approached the question on the basis that a fair-minded observer would probably apprehend that Mr Mellett might not bring an impartial mind to his role in the selection panel, and therefore found that the decision not to promote Ms Martin was not taken in a reasonable manner. I respectfully concur with the primary judge's careful reasons in this regard. In particular, I agree with his Honour that: (a) there was no warrant for the Tribunal treating the words "taken in a reasonable manner" in s 5A as being synonymous with the doctrine of apprehended bias in administrative law (at [72]); (b) it is not clear that paragraphs [103] and [104] of the Tribunal's decision should be regarded as being directed to the concept of the selection process being "fair and objective" as referred to in the Guidelines (at [74]); (c) the Tribunal appears to have misunderstood or misapplied the doctrine of apprehended bias (whether that doctrine was applied directly, or indirectly via the Guidelines) (at [76] and following); (d) the fact that the selection panel was an advisory body and did not make the ultimate selection decision was an important matter to be considered in assessing whether or not the relevant administrative action was taken in a reasonable manner, and the Tribunal gave no attention to it (at [90]); and (e) the Tribunal's reasons for its conclusion that the decision was not taken in a reasonable manner left distinctly unclear whether that was because the selection process did not comply with the Guidelines (at [97]). 137 This issue should be remitted to the Tribunal to determined according to law.

CONCLUSION 138 The primary judge found that the Tribunal erred on the second issue, but not on the first, and on that basis his Honour ordered that the matter be remitted to the Tribunal. I consider the Tribunal erred in its approach to both issues. In my view the matter must be remitted to the Tribunal on both issues, to be reheard and determined according to law including the law as explained in these reasons for judgment. The respondent should be ordered to pay the appellant's costs of and incidental to the appeal including the hearing before the primary judge. 139 By proposing that the matter be remitted to the Tribunal I propose the same result as the orders of the primary judge, but even where no change to the overall result is ordered the Court has power to make orders and declarations so that, upon remittal, the Court may set out the law for the decision-maker below: Commonwealth Superannuation Scheme Board of Trustees v Kitching [2004] FCAFC 299; (2004) 139 FCR 272 at [3] (Nicholson, Jacobson and Bennett JJ); Australian Competition and Consumer Commission v Telstra Corporation Ltd ACN 051 775 556 [2009] FCAFC 68; (2009) 176 FCR 203 at [66] (Ryan, Jacobson and Foster JJ). I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.