The Federal Court of Australia (the Court) has dismissed an employee’s disability discrimination and victimisation claims against his employer, a family law practice, finding that the employer did everything necessary to assist the employee to return to work following a major depressive episode.
In Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436 , Mr Tropoulos, a family lawyer (the employee), argued that Journey Lawyers Pty Ltd (the employer), discriminated against him and failed to provide “reasonable adjustments” for his disability in breach of the Disability Discrimination Act 1992 (Cth) (DD Act).
Despite the employer’s support, several return to work attempts failed with the employee being unable meet the reduced hours of work and working at one tenth of his previous working capacity.
In a third attempt to facilitate the employee’s return to work, the employer sought to reduce the employees’ expected earnings and reduce his salary and responsibilities associated with mentoring other lawyers The return to work plan also included a gradual increase to hours of work.
The issues
The Court had to determine whether the legal practice should have made “reasonable adjustments” for the employee with respect to his disability. The employee argued that his employer should have:
- provided him with half-day working days;
- provided him with briefings on his return to work;
- permitted him to work on his former client files;
- permitted him to return to the office he had occupied prior to his absence; and
- permitted him to return to the position, conditions and salary of Senior Associate he formerly held, rather to be demoted to a new role of “Family Lawyer”.
While medical advice was provided by the employee’s psychiatrist in support of the employees’ return to work, the Court noted the psychiatrist had previously misjudged the employee’s capacity, and that such advice was coloured by optimism. The Court placed weight on the fact that the legal practice had not received a formal “return to work” plan from the employee’s treating psychiatrist, and lacked knowledge about the employee’s disability and the adjustments that he required.
The decision
The Court accepted that the employer had facilitated an informal return to work plan for the employee, and had attempted to:
- support his return to work on several occasions;
- reduce the employee’s hours to three alternate days per week;
- provide the employee with time to recover;
- provide a gradual increase in hours of work; and
- offer the employee additional leave to facilitate further recovery, if required.
The Court held that by taking the steps above, that the employer had made reasonable adjustments for the employee within the meaning of the DD Act.
The Court rejected the employee’s claims that the legal practice’s failure to implement his proposed reasonable adjustments constituted disability discrimination, finding that the employee had not been treated less favourably than an employee, without his disability, would have been treated in materially similar circumstances. The Court accepted that, even if the employer’s conduct had amounted to disability discrimination, the employee’s case on liability would have failed on the bases that
- the employee’s proposed reasonable adjustments (working 5 half days per week) constituted an “unjustifiable hardship”; and
- the employee would have been unable to carry out the inherent requirements of practice as a lawyer, even if the requirements were made.
In considering the inherent requirement exception, the Court set out the relevant question for determination – would the position be essentially the same if that requirement were dispensed with? The existence of a requirement within an employment contract does not of itself confirm that it is an inherent requirement of the particular position in question. In this case, the Court found that the ability to put legal knowledge and skills into practice in such a way as to derive an income was an inherent part of the employees’ role as a senior associate and that the employee, because of his disability, was unable to carry out the inherent requirements of his role.
Finally, the Court held the alleged detriments imposed on the employee had not been imposed “because of” the employee’s assertion of his legal rights.
Describing the obligations on employers, the Court noted that it is not an employer’s obligation to take responsibility for the recovery of an employee’s health.
The application by the employee was dismissed by the Court, and the employee was required to pay the employers’ costs on a party-party basis.
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