Employer’s
Restrictions v Reasonable Adjustments
A recent case
of Tropoulos v Journey Lawyers
[2019] FCA 436 demonstrates how the Court
will balance the needs of an employee with a disability with the restraints of
a small business.
It is a
significantly long case, and provides detailed examples and analysis of how an
employer should manage an employee’s return to work with a disability.
Background
Mr Tropoulos
was a Senior Associate working at a small law firm in Queensland called Journey
Family Lawyers.
Journey
Lawyers was a small firm with 16 employees - eight lawyers and eight support
staff.
Mr Tropoulos
experienced a flare-up of his existing depressive disorder, which resulted in
six months of leave, although he made attempts to return to work during that
time. He alleged his symptoms were linked to him working 20 days without a single
day off, which was denied by the employer.
The claim was
that his employer had failed to make reasonable adjustments
upon
his return to work for his disability, as per section 5(2)(a) of the federal Disability
Discrimination Act
. He also alleged direct discrimination. Some of the key
conduct alleged included:
- Reducing his title from Senior Associate to “Family
Lawyer”;
- Reducing his wage;
- Giving his office to another lawyer, and placing
him in a cubicle upon his return to work;
- Allocating him legal aid clients until new private
clients gradually built up;
- Granting him a part-time return to work which was
different from what he had requested – they approved 3 full days a week,
and he had sought 5 half-days. They did, however, ask him to let them know
if that didn’t suit.
Legal Claim
Disability
discrimination legislation throughout Australia requires reasonable adjustments
to be made for people with disabilities. The nature of those adjustments will
require a delicate balance of the person’s needs with the employer’s financial
and operational restrictions.
Here, it was
held that the employer did not discriminate, and had made reasonable
adjustments were requested. The key factors the court considered were:
- Mr Tropolous conceded that his disorder affected his performance
in the role.
- The overheads of a small firm was so high that
provision of an office would have been an unjustifiable hardship on the
business.
- Re-allocation of clients would have been disruptive to
them and family law clients in particular did not like this.
- Family lawyers require good judgment and emotional
stability.
- Half days were not specifically recommended by Mr
Tropoulos’ treating doctor and were not practically achievable given the
nature of litigation and family law clients who required urgent access to
their lawyer.
Lessons
The full text
of this case is an excellent example of how an employer should balance their
requirements with an employee with a disability.
Several of the
employers’ decisions would not have been considered reasonable if they were a
larger business, with more resources, funds, and types of work that Mr
Tropolous could have adopted.
When looking
at an employee’s return to work, especially those with a disability, employers
should seek legal advice as to:
- Their genuine commercial and operational restrictions;
- The type of adjustments required by treating doctors;
- How best to balance the needs of the business and those
of the employee.
Nicola Drakeford is a partner at Forty Four Degrees Pty Ltd.
