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Norman Waterhouse

‘Bending over backwards’ considered reasonable adjustments

As most people would be aware, pursuant to the Disability Discrimination Act 1992 (Cth) (the DD Act), it is unlawful for an employer (or a person acting on behalf of an employer) to discriminate against a person on the ground of their disability in a range of employment areas.

The DD Act contemplates both direct disability discrimination and indirect disability discrimination. In the recent decision of Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436, Mr Tropoulos claimed direct discrimination by his employer, Journey Lawyers Pty Ltd (Journey Lawyers). The Federal Court of Australia (the Court) dismissed Mr Tropoulos’ claim on the basis that Journey Lawyers made reasonable adjustments for Mr Tropoulos’ disability, and did not treat him less favourably than a person without his disability in circumstances that were not materially different.

Facts

Mr Tropoulos was employed by Journey Lawyers on 24 February 2012 in the position of Senior Family Lawyer and then position of Senior Associate. Journey Lawyers is a small family law practice which specialises in matrimonial disputes. Mr Tropoulos suffers from the disability of depressive disorder within the meaning of the DD Act. Mr Tropoulos’ depressive disorder deteriorated in or around July 2015.

At the advice of his doctor, Mr Tropoulos took urgent leave from 10 August 2015 until 22 September 2015. Mr Tropoulos attempted to return to work multiple times, however, such attempts were unsuccessful.

Mr Tropoulos’ treating doctor had frequent email communications with Journey Lawyers. Journey Lawyers accommodated to Mr Tropoulos’ disability and made a number of adjustments to his role.

Mr Tropoulos asserted that Journey Lawyers failed to make reasonable adjustments for him, which should have included:

  • The provision of half-day working days, five days per week (rather than three alternate days working between 8:30am and 5:00pm).
  • Not making him work as if he were not subject to a disability.
  • Returning to him the clients whose files he had before his absence, and not allocating him legal aid clients.
  • Allowing him to return to the office he had occupied before he was absent.
  • Allowing him to retain his substantive title, conditions and salary as Senior Associate.
  • Engaging in mediation with him.

Journey Lawyers submitted that the adjustments proposed by Mr Tropoulos were not reasonable because they would lead to unjustifiable hardship to the firm on account of the nature of its legal practice. Journey Lawyers further asserted that, even if the adjustments were reasonable and required to be made, Mr Tropoulos would not be able to fulfil the inherent requirements of the particular work that he undertook with Journey Lawyers.

Decision

A reasonable adjustment, pursuant to section 4 of the DD Act, is any adjustment which is identifiable and available, unless it imposes an unjustifiable hardship. In this decision, the Court found that Journey Lawyers did not fail to make, or propose to make, reasonable adjustments for Mr Tropoulos.

In respect of Mr Tropoulos’ suggestion of working half days, five days per week, the Court was satisfied that it may not be convenient for a law firm conducting a practice such as Journey Lawyers does (with demanding clients with high expectations), to engage lawyers to work fractions of working days. The Court also found that the financial strain to Journey Lawyers in respect of its overheads payable to Mr Tropoulos while working fractions of days, constituted an unjustifiable hardship.

The Court also considered the ‘comparator’ provision, in respect of section 5 of the DD Act. This provision requires that the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourable than a person without the disability would be treated in circumstances that are not materially different.

Mr Tropoulos submitted that the appropriate ‘comparator’ in his case was an employee entitled to receive workers’ compensation. The Court rejected Mr Tropoulos’ submission as he was not suffering a work-related injury and his illness was not exacerbated by work-related circumstances. In any event, the Court determined that the appropriate ‘comparator’ would be an employee undertaking professional duties that experiences a condition such that they are unable to work full-time for a limited period of time (such as a physical injury or other personal circumstances), pending resumption of full-time duties.

In respect of Mr Tropoulos’ complaints regarding return to work arrangements (including lack of briefings about matters, reallocation of his clients, failure to return him to his former office and the position and salary of Senior Associate), the Court decided that Journey Lawyers did make reasonable adjustments for Mr Tropoulos’ disability. In fact, the Court found that Journey Lawyers had ‘bent over backwards’ to try and accommodate Mr Tropoulos.

Take Home Message

What constitutes ‘reasonable adjustments’ in the context of disability discrimination differs from workplace to workplace. In this decision, the Court did not consider working fractured days to be a reasonable adjustment, due to the demanding nature of a family law practice. This of course may not be the case in a different workplace, and each situation needs to be assessed on a case by case basis. Employers must endeavour to provide support and make reasonable adjustments to employees suffering from a disability, where possible.

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