NSCA Foundation

Mental health and an inability to do the job — what is a reasonable adjustment?


By Catherine Dunlop and Meredith Kennedy*
Thursday, 16 May, 2019


Mental health and an inability to do the job — what is a reasonable adjustment?

Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436

The Federal Court of Australia has provided guidance to employers who are supporting staff with mental illness on what constitutes ‘reasonable adjustments’ and ‘unjustifiable hardship’ under the Disability Discrimination Act 1992 (Cth) in Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436. The case provides further illustration of the importance of employers appropriately considering all relevant issues before making decisions on evidence based grounds. It is also significant because the employee conceded that his health condition impacted on his judgement and thought processes, and the Court noted that the employer was entitled to make what was a substantial adjustment to the employee’s duties because of this.

Background

Mr Tropoulos was a Senior Associate with Journey Lawyers when he experienced a deterioration of his pre-existing depressive disorder. Significantly, Journey Lawyers is a relatively small family law firm in Queensland. Following a period of leave of about six months to focus on his mental health (this period included a brief, unsuccessful attempt to return to work), Mr Tropoulos sought a graduated return to work in 2016.

The issue

In communications with Mr Tropoulos and his psychiatrist, Journey Lawyers outlined the basis on which it proposed Mr Tropoulos return to work. Specifically, the firm proposed that Mr Tropoulos:

  • initially work three alternating full days per week, building up to five days rather than Mr Tropoulos’ proposal of five half-day working days per week
  • would be allocated legal aid files rather than private clients’ files
  • work in an open plan setting rather than his previously allocated office
  • return to a position as a “family lawyer” rather than a Senior Associate
  • receive a reduced annual salary of $75,000 plus superannuation, rather than $120,000 plus superannuation.
     

Mr Tropoulos rejected this proposal and ultimately filed a complaint with the Australian Human Rights Commission and subsequently the Court. Mr Tropoulos alleged, among other things, that Journey Lawyers failed to make reasonable adjustments to his role with the result that Mr Tropoulos was, because of his disability, treated less favourably by Journey Lawyers than a person without his disability would be treated in circumstances that were not materially different.

Key findings

The Court noted that the definition of “reasonable adjustment” in the Act contemplates that any adjustment, which is identifiable and available, is a reasonable adjustment unless the making of the adjustment would impose an unjustifiable hardship.

Part-time adjustment

The Court found that the three alternating days per week working pattern was reasonable because:

  • Mr Tropoulos’ psychiatrist had not expressly recommended the five half-day working pattern to Journey Lawyers and Journey Lawyers had specifically invited Mr Tropoulos to advise whether three alternating days per week were “too much” for him (Mr Tropoulos did not do so); and
  • in reality, Journey Lawyers did not insist on Mr Tropoulos working full days when he was unable to do so.
     

The Court also noted that due to its small size, the financial strain that the five half-day working pattern would place on Journey Lawyers constituted an unjustifiable hardship for the purposes of the Act. The Court noted that this finding may have been different if the employer had been a larger private firm or government department with greater resources. 

Reallocation of private client files

The Court held that by allocating Mr Tropoulos to legal aid rather than private client files on his return to work, Journey Lawyers had made a reasonable adjustment because:

  • a previous attempt to allocate private client files to Mr Tropoulos had been unsuccessful because of his relapse and return to extended leave
  • it would have necessitated a further file reallocation in the office and further explanation to clients
  • Mr Tropoulos was clearly not confident in his work.
Loss of office

The Court held that it was reasonable for Journey Lawyers to reallocate Mr Tropoulos’ office to a lawyer working full time as it would lead to an unjustifiable hardship for a small firm to be required to reserve an office solely for his use. The Court also noted that Mr Tropoulos’ new workspace was not substandard.

Position and salary of Senior Associate

Significantly, in his court pleadings, Mr Tropoulos conceded that his disability affected his thought processes, emotions and judgment, and resulted in disturbed behaviour on his part. In finding that the reduction in salary and loss of senior position was a reasonable adjustment, the Court relied on the fact that Mr Tropoulos was unable to perform billable work at anywhere near his previous level and there was no indication of when this would change. The Court found that Journey Lawyers had sustained Mr Tropoulos’ salary and position for an extended period of time but that given it was a small firm with tight budgets, further extension of this support would have led to unjustifiable hardship.

Key takeaways

Our advice in such matters is that employers must always act on evidence, rather than assumptions about what an employee can or cannot do. This will include appropriate medical information and taking into account the particular circumstances of their organisation and the specific role. This case confirms the soundness of such an approach, and also serves to remind that:

  • employers who can demonstrate that they have taken into account the views of the affected employee and the advice of treating practitioners when proposing suitable working arrangements will be in a strong position to defend these arrangements, even if these are not the specific arrangements sought by the employee
  • relevant working arrangements need not be restricted to the formalised, documented role if flexibility is required in the circumstances; a court will not only consider the formal arrangement between the parties but the actual working patterns of the employee
  • the size of the employer will be highly relevant to determining whether an adjustment is reasonable or whether it would cause unjustifiable hardship to the employer. In this case, the fact that the firm was relatively small with slim margins meant that it could not maintain Mr Tropoulos’ position and salary for an extended period of time
  • the employer’s industry and the specific duties of the employee will also be key to determining whether a proposed adjustment is suitable. As a family lawyer, Mr Tropoulos’ duties required constant client and file management as well as an ability to provide advice and advocacy to a consistently high standard.
     

*Catherine Dunlop is a Partner and Meredith Kennedy is a Senior Associate at Maddocks. This article has been reproduced with their permission.

Image credit: ©stock.adobe.com/au/sebra

Originally published here.

NSCA Foundation is a member based, non-profit organisation working together with members to improve workplace health and safety throughout Australia. For more information and membership details click here
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